11 December, 2003

Can Constitutional Safeguards of “Old Whig” Ideals of Liberty Endure in a Liberal Democracy?

Introduction

For many years I have been nagged by the same concern that has preoccupied Friedrich A. Hayek for decades. It is the same concern which was also voiced by James Madison, a prominent member in the group of men who drafted the American Constitution; Hayek considers James Madison to have been philosophically a genuine “classical liberal.” Madison wrote: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” It is the part about obliging government to control itself that has always been an ever-present problem in societies that label themselves as democratic and are governed according to rules set out in a written constitution.

I have been a fan of Hayek for decades; my devotion to him began with the reading of The Road to Serfdom, and my absorption of his ideas continued with the trilogy Law, Legislation and Liberty (hereafter abbreviated as LLL). I have had occasion to consult LLL numerous times throughout the last twenty years, and make copious use of it in this essay. However, when I decided to gain a deeper understanding of the reasons why the citizens of democracies, old or new, have invariably failed to emplace inviolable and durable constitutional controls on the governments which they have chosen to rule over them, I felt I should also read Hayek’s other major work, The Constitution of Liberty (hereafter abbreviated as CL), which he had written some thirteen years before the LLL trilogy.

I have found that The Constitution of Liberty contains much useful knowledge. It presents an excellent comprehensive history of the evolution of the ideals of liberty under the rule of law since ancient times. The history provides the reader with invaluable background information on the subject and instills an appreciation of the sacrifice of blood and treasure that men have expended through the ages in order to secure those selfsame ideals of individual liberty. Turning to constitutional democracies of modern times, Hayek compares the different philosophical underpinnings of the two basic systems - the Anglo-Saxon and the French – upon which modern democracies have been founded.

In The Constitution of Liberty I also learned about the Englishmen who came to be known as the “Whigs.” These men carried on a revolution against the monarchy, in a more prudent and much less apocalyptic fashion than did their counterparts in France a hundred years later. The English revolution lasted about 50 years (approximately from 1640 to 1690). The culminating event of it is known as the “Glorious Revolution of 1688.” To put it briefly, this revolution was the first struggle in modern times with the same ages-old problem of how to oblige government to control itself. Those Englishmen fought in order to secure what Hayek calls the “Old Whig” ideals of liberty under the rule of law.

It was in The Constitution of Liberty that I first encountered Hayek’s term “Old Whigs,” and his reference to their political principles as “ideals,” and their party as the “party of liberty.” Hayek’s terminology inspired me to construct a most fitting (at least in my opinion) title for this essay. I have deliberately crafted the title in the form of a question that simultaneously conveys the hint that no popular assent of such constitutional measures has ever been sustained for long, and is highly unlikely to be sustained in the future. I also deliberately used the word “Ideals” in the title rather than, say, “principles,” or “ideas,” because of its weightier significance. By definition, “Ideals” are objectives that we approach asymptotically, but never attain completely.

The “Old Whig” ideals of liberty are not listed, as such, in any one single document. Hayek devotes several pages in CL, 11, 3–6, describing their development. He writes,

Out of the extensive and continuous discussion of these issues during the Civil War, there gradually emerged all the political ideals which were thenceforth to govern English political evolution. We cannot attempt here to trace their evolution . . . We can only list the main ideas that appeared more and more frequently until, by the time of the Restoration, they had become part of an established tradition and, after the Glorious Revolution of 1688, part of the doctrine of the victorious party. [CL, 11, 4]

It became generally recognized that for individual liberty to be preserved it was of the greatest importance that arbitrary actions by government should be prevented. During the revolutionary decades it also came to be recognized, from the events that transpired in the interim, that Parliament was apt to act just as arbitrarily as the king, and that whether or not an action was arbitrary depended not on the source of the authority but on whether it was in conformity with pre-existing general principles of law. The governing principle throughout was that not the king, but the Law should rule. [see CL, 11, 4]

The spirit of the times in England is illustrated by a formal declaration of constitutional principles by Parliament, in 1660:

There being nothing more essential to the freedom of a state, than that the people should be governed by the laws, and that justice be administered by such only as are accountable for mal-administration, it is hereby further declared that all proceedings touching the lives, liberties and estates of all the free people of this commonwealth, shall be according to the laws of the land, and that the Parliament will not meddle with ordinary administration, or the executive part of the law: it being the principle [sic] part of this, as it has been of all former Parliaments, to provide for the freedom of the people against arbitrariness in government. [CL, 11, 4]

Hayek considers John Locke to be the most influential political philosopher of the English revolution and Locke’s Second Treatise on Civil Government as outstanding in its lasting influence on the development of “Old Whig” political ideals. He cites at length from the Second Treatise (reference is to the numbered sections in the Treatise):

While in his philosophical discussion Locke’s concern is with the source which makes power legitimate and with the aim of government in general, the practical problem with which he is concerned is how power, whoever exercises it, can be prevented from becoming arbitrary: “freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where that rule prescribes not: and not to be subject to the inconstant, uncertain, arbitrary will of another man.”²² It is against the “irregular and uncertain exercise of the power”¹²⁷ that the argument is mainly directed: the important point is that “whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the forces of the community at home only in the execution of such laws.”¹³¹ Even the legislature has no “absolute arbitrary power,”¹³⁷ “cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subjects by promulgated standing laws, and known to authorized judges,¹³⁶ while the “supreme executor of the law . . . has no will, no power, but that of the law.”¹⁵¹ Locke is loath to recognize any sovereign power, and the Treatise has been described as an assault upon the very idea of sovereignty. The main practical safeguard against the abuse of authority proposed by him is the separation of powers, . . . [CL, 11, 5]

It can be fairly said that in the above paragraph Hayek has achieved a comprehensive synopsis of John Locke’s ideas of how free men should govern themselves. The “Old Whigs” incorporated most of Locke’s ideas into their assertions of what a government under the rule of law should and should not do.

Elsewhere, Hayek provides a general statement which is useful in that it lists, very concisely, the core values of “Old Whig” ideals:

For two centuries, from the end of absolute monarchy to the rise of unlimited democracy the great aim of constitutional government had been to limit all governmental powers. The chief principles gradually established to prevent the arbitrary exercise of power were the separation of powers, the rule or sovereignty of law, government under the law, the distinction between private and public law, and the rules of judicial procedure. They all served to define and limit the conditions under which any coercion of individuals was admissible. [LLL,Vol.3, p. 99]

It can be said, then, that the “Old Whig” ideals have one over-riding theme which can be expressed as: “Rule of Law under a government that is itself restrained by Rule of Law”. I have intentionally capitalized “Rule” and “Law” in this statement; the concept of “Rule of Law”, applicable to citizen and government, coursed through all of the several reforms instituted during the 50 years of revolutionary change in England.

We must turn next to the “villains of the piece” – i.e., the baser desires in human nature. A living democracy can be likened to a biological organism: Just as there are certain viruses, endemic to a biological organism from birth, which constantly fight the body’s immune system until death, so there appear to be the “viruses” born of the baser side of human desires, which have been endemic in democratic politics since time immemorial, and which have never ceased to attack, weaken, and destroy the “Old Whig” ideals that constitute the backbone of a liberal democracy. To carry this analogy one step further: men are still searching for the constitutional constructs - the political “antibodies” – such that would withstand all attacks by the malevolent political viruses, born of the baser human desires and masquerading as beneficial agents of democracy, and thus ensure that the constitution could never be compromised for the sake of a passing convenience.

The ideals and hopes of the men of the “Glorious Revolution of 1688” were soon enough confronted by that old nemesis – arbitrariness – which, in accordance with human nature, sooner rather than later, creeps like a thief into a government, be it constitutional or autocratic, be it by king or by Parliament. Only seventy-four years after the “Glorious Revolution,”

. . . the British Parliament claimed sovereign, that is unlimited, powers and in 1766 explicitly rejected the idea that in its particular decisions it was bound to observe any general rules not of its own making. . . this in effect meant the abandonment of constitutionalism which consists in a limitation of all power by permanent principles of government . . . [LLL, Vol.3, p.2]

Further on, Hayek remarks rather sarcastically:

So it came about that with the precious institutions of representative government Britain gave to the world also the pernicious principle of parliamentary sovereignty according to which the representative assembly is not only the highest but also an unlimited authority. [LLL, Vol.3, p.3]

However, it should be noted that the British Parliament was never subjected to a formal written constitution, whereas other parliamentary systems which have copied the British model usually function, at least in theory, under written constitutional restraints.

One must also remember that Hayek wrote most of his political works during the politically darkest decades following World War II, when liberty and liberal democracy were in retreat world-wide, and communism, socialism, and welfare-statism seemed to be unstoppable forces. The serious and immediate totalitarian threats to democracy and individual liberty were, rightly so, of paramount concern to Hayek when he wrote The Road to Serfdom, The Constitution of Liberty, and the trilogy Law, Legislation and Liberty. LLL was written in 1973, at the height of Soviet expansion and world-wide proliferation of communist “peoples democracies.” Hayek makes a remark about existing democracies of the day which is particularly fitting to the so-called democracies of the Soviet sphere:

. . Indeed, we are now told that the 'modern conception of democracy is a form of government in which no restriction is placed on the governing body’ . . . [LLL, Vol.3, p.3]

Of course, hard-core totalitarian socialism has lost much of its allure since the collapse of the Soviet Union and poses little danger to democracies, at least for the time being. It does look like communism has been consigned “to the ash-heap of history” (to use a popular expression). However, Hayek’s over-riding objective has always been much broader than merely confronting the socialist threat to democracy; rather, his has been a search for effective institutional safeguards against the subtle, internally-generated forces of decomposition that have historically plagued democracies and that have, if anything, become stronger in our modern-day welfare-state era.

Hayek finds that the history of modern-day democracies and the trends that they currently exhibit, leave little reason for hoping that what we call the “Old Whig” ideals of liberty stand a chance of being preserved in the future. Hayek states in the very first paragraph of the LLL trilogy:

When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since. Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. The first attempt to secure individual liberty by constitutions has evidently failed. [LLL, Vol.1, p.1]

Perhaps intentionally, to make the point that individual liberty and constitutionalism need not necessarily be reserved solely for democratic systems, Hayek avoids using the word “democratic” in this the opening declaration in his seminal work. Hayek seems to hint that securing individual liberty by constitutions has failed, irrespective of the form of government under which it may have been tried. Hayek makes no secret of his distaste for a certain kind of democratic government, as in the following quotes:

Though I firmly believe that government ought to be conducted according to principles approved by a majority of the people, and must be so run if we are to preserve peace and freedom, I must frankly admit that if democracy is taken to mean government by the unrestricted will of the majority I am not a democrat, and even regard such government as pernicious and in the long run unworkable. [LLL, Vol. 3, p.39]

In its present unlimited form democracy has today largely lost the capacity of serving as a protection against arbitrary power. [LLL, Vol. 3, p.138]

That a democracy can degenerate into tyrannical forms was already well known to the ancient Greeks; Hayek was also well aware of the Greek experience which was recounted by Aristotle. Aristotle’s dissertation on the five forms of democracy is, in my opinion, so excellent that I feel compelled to reproduce it here in order to inform, or refresh, as the case may be, the reader’s awareness of it. The following passage is taken from Aristotle’s Politics, Book IV, Chapter 4, translation by Benjamin Jowett:

Of forms of democracy first comes that which is said to be based strictly on equality. In such a democracy the law says that it is just for the poor to have no more advantage than the rich; and that neither should be masters, but both equal. For if liberty and equality, as is thought by some, are chiefly to be found in democracy, they will be best attained when all persons alike share in the government to the utmost. And since the people are the majority, and the opinion of the majority is decisive, such a government must necessarily be a democracy. Here then is one sort of democracy.

There is another [second], in which the magistrates are elected according to a certain property qualification, but a low one; he who has the required amount of property has a share in the government, but he who loses his property loses his rights.

Another kind [third] is that in which all the citizens who are under no disqualification share in the government, but still the law is supreme.

In another [fourth], everybody, if he be only a citizen, is admitted to the government, but the law is supreme as before.

A fifth form of democracy, in other respects the same, is that in which, not the law, but the multitude, have the supreme power, and supersede the law by their decrees. This is a state of affairs brought about by the demagogues. For in democracies which are subject to the law the best citizens hold the first place, and there are no demagogues; but where the laws are not supreme, there demagogues spring up. For the people becomes a monarch, and is many in one; and the many have the power in their hands, not as individuals, but collectively. Homer says that 'it is not good to have a rule of many,' but whether he means this corporate rule, or the rule of many individuals, is uncertain.

At all events this sort of democracy, which is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot; the flatterer is held in honor; this sort of democracy being relatively to other democracies what tyranny is to other forms of monarchy. The spirit of both is the same, and they alike exercise a despotic rule over the better citizens. The decrees of the demos correspond to the edicts of the tyrant; and the demagogue is to the one what the flatterer is to the other. Both have great power; the flatterer with the tyrant, the demagogue with democracies of the kind which we are describing. The demagogues make the decrees of the people override the laws, by referring all things to the popular assembly. And therefore they grow great, because the people have all things in their hands, and they hold in their hands the votes of the people, who are too ready to listen to them. Further, those who have any complaint to bring against the magistrates say, 'Let the people be judges'; the people are too happy to accept the invitation; and so the authority of every office is undermined.

Such a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority, there is no constitution. The law ought to be supreme over all, and the magistracies should judge of particulars, and only this should be considered a constitution. So that if democracy be a real form of government, the sort of system in which all things are regulated by decrees is clearly not even a democracy in the true sense of the word, for decrees relate only to particulars.

These then are the different kinds of democracy.

It is quite plain to see how much alike are the standards of Aristotle’s first (and therefore presumably deemed by him the best) form of democracy and Hayek’s ideal classical liberal one. Aristotle says that the first form of democracy is “based strictly on equality” and in such a democracy “the law says that it is just for the poor to have no more advantage than the rich; and that neither should be masters, but both equal.” Equally similar are Hayek’s and Aristotle’s democracies that have gone bad; obviously, the fifth (degenerate) form of democracy had evolved in some of the Greek city states often enough by the time Aristotle wrote his Politics, some 2,500 years ago, so that he could describe the reasons that bring about the degeneration in some detail.

According to Aristotle, in these degenerate democracies ‘not the law, but the multitude, have the supreme power, and supersede the law by their decrees,’ and ‘the people becomes a monarch, and . . . have the power in their hands, not as individuals, but collectively.’ ‘This sort of democracy . . . is no longer under the control of law,’ and ‘the decrees of the demos correspond to the edicts of the tyrant.’ The demagogues hold sway in such democracies because the people have unlimited power, and the demagogues persuade the people how to vote. Such democracies no longer deserve to be called constitutional, ‘for where the laws have no authority, there is no constitution. The law ought to be supreme over all,’ and ‘the sort of system in which all things are regulated by decrees is clearly not even a democracy in the true sense of the word.’

It must be by design that in the case of the first four forms of democracy Aristotle repeats ‘the law is supreme.’ He obviously wants to emphasize the point that adherence or non-adherence to the rule of law in a society is the paramount criterion by which one judges whether that society is a constitutional democracy or simply another form of tyranny. It was the same criterion by which the “Old Whigs” judged their government, first under the monarch, later under Parliament, and by which Hayek likewise judges (and finds wanting) our modern-day democracies, reflected in the following comments:

Democracy is not necessarily unlimited government. Nor is a democratic government any less in need of built-in safeguards of individual liberty than any other. . . It is when it is contended that “in a democracy right is what the majority makes it to be” that democracy degenerates into demagoguery. [CL, 7, 3]

It would seem that wherever democratic institutions ceased to be restrained by the tradition of the Rule of Law, they led not only to 'totalitarian democracy' but in due time even to 'plebiscitary dictatorship'. [LLL, Vol. 3, p.4]

In the above, Hayek pretty well echoes what Aristotle says about the weaknesses that democracies are prone to. It appears, then, that things have not changed much since the time of Aristotle; men have yet to come up with a durable constitutional solution of how to ensure that those who hold power do not trespass laws that protect the liberty of all individuals, regardless of wealth or social status.

If we want to find the underlying causes for why it has been so difficult, if not impossible, (and very likely will continue to be), to devise iron-clad constitutional guarantees, in perpetuity, of the inviolability of certain basic individual liberties in democratic states, we can start by noting the fact that the several forms of socialist totalitarian ideology which menaced the liberal democracies in a most openly hostile manner during the 20^th century, did not arise out of the blue; they had a historical development in the philosophical thought of the West, extending back at least as far as the French Revolution. The totalitarian ideas germinated and matured within the same Western societies which eventually did, by and large, settle on democratic forms of government, however ineffective they have proven to be insofar as preserving individual rights and liberties is concerned.

We can logically conclude that there must be certain basic innate defects in human nature which, in a democratic setting, can not long tolerate and soon seek to countermand, by means of legislation, articles of a written constitution which were meant to enshrine individual rights and liberties without any exceptions. Furthermore, we can reason that those very same innate flaws in human nature, when allowed to run to extremes, eventually result in totalitarian ideologies that turn democracies into tyrannies. This is the process whereby Aristotle’s fifth form of (degenerate) democracy and Hayek’s ‘plebiscitary dictatorship’ is reached.

What, then, are the innate defects in human nature which cause a democracy to depart from the Rule of Law and to abandon the “Old Whig” ideals of liberty? I am proposing that they can be described as: (1) distortion of moral values, (2) egalitarian envy, and (3) communal larceny.

Before proceeding to an explanation of what I mean by the above terms, I wish to set the stage by referring first to a trend I observe in Hayek’s works: It appears to me that Hayek’s concerns for the preservation of individual liberties shifted emphasis along with the changing geo-political circumstances in the second half of the 20^th century. He started out by focusing, in The Road to Serfdom (1944), on the totalitarian menace to democracy and freedom. With time, the Western democracies gradually developed an immunity of sorts against overt totalitarian take-over, albeit they could do so only by imposing certain coercive government regulations on society that were demanded by their own socialist factions. Introduction of such regulations gradually transformed Western liberal democracies into what came to be known as “welfare states.”

With the dawning of the “welfare state” era, Hayek’s concerns about individual rights and liberties had to shift emphasis to the threats that were generated internally by democratic societies themselves. Thus, in his next major work – The Constitution of Liberty (1960), his focus shifts to the internal aspects of liberal democracies. The book covers the historical development of liberty from ancient Greece onward to modern-day constitutionalism, and discusses the pros and cons of various aspects of today’s “welfare state” democracies. Although Hayek is greatly concerned in CL with the loss of individual liberties, he ascribes the loss mainly to the arbitrary actions by the impersonal entity of “government.” He does not, yet, inquire into the nature of the basic human desires within the population at large which may actually be what compel a body of elected legislators to act contrary to the principles of individual liberty. He treats the “welfare state” rather gently, as in the following:

Unlike socialism, the conception of the welfare state has no precise meaning. . . All modern governments have made provision for the indigent, unfortunate, and disabled and have concerned themselves with questions of health and the dissemination of knowledge. There is no reason why the volume of these pure service activities should not increase with the general growth of wealth. [CL, 17, 4]

and further in the same chapter,

Though the position that the state should have nothing to do with matters not related to maintenance of law and order may seem logical so long as we think of the state solely as a coercive apparatus, we must recognize that, as a service agency, it may assist without harm in the achievement of desirable aims which perhaps could not be achieved otherwise. [CL, 17, 4]

The three volumes of Hayek’s trilogy - Law, Legislation and Liberty - constitute all together the crowning achievement of his political philosophy, and of the three the most notable is the second volume, titled The Mirage of Social Justice (1976). In it, Hayek looks deeper into the characteristic behavior of groups and individuals, in order perhaps to account for the unsettling trend towards the loss of individual rights and liberties in today’s democracies. It turns out that the three innate defects in human nature which I identify above as the internal threats in a democratic society, can all be found hiding within a bogus invention of our “progressive” democratic elites; Hayek calls it, rightly so, the mirage of “social justice.”

Chapter 9 of Volume 2, titled ‘Social’ or Distributive Justice, is an indictment of the inane concept of ‘social justice’, and of those who conceived of it. Hayek condemns ‘social justice’ as an internal (i.e., self-generated and unforced by external influences) moral blight that is corroding away the principles of individual rights and liberties in the societies of Western democracies. I feel that I could not do justice to Hayek if I were to try to summarize the contents of Chapter 9; instead I am including many excerpts (with the occasional comment thrown in), which speak immeasurably better to the point at hand than I ever could by paraphrasing.

Hayek speculates that the idea of ‘social justice’ resulted from men’s attempts to apply to society at large the same justice which was designed for individuals:

It is perhaps not surprising that men should have applied to the joint efforts of the actions of many people, even where these were never foreseen or intended, the conception of justice which they had developed with respect to the conduct of individuals towards each other. ‘Social’ justice (or sometimes ‘economic justice’) came to be regarded as an attribute which the ‘actions’ of society, or the ‘treatment’ of individuals and groups by society, ought to possess. [LLL, Vol. 2, p. 62]

Hayek figures that the erroneous notion of ‘social justice’ came into being around the middle of the 19^th century; it was used prominently by John Stuart Mill; Hayek quotes from Mill’s Utilitarianism (1861):

“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.” [LLL, Vol. 2, p. 63]

During the second half of the 19^th century, the ‘social justice’ idea matured and spread throughout Europe. As it did so it also usurped the moral high ground, at the expense of individual morality; as told by Hayek:

'Social policy' (or Socialpolitik in the language of the country then leading in the movement) became the order of the day, the chief concern of all progressive and good people, and 'social' came increasingly to displace such terms as 'ethical' or simply 'good'.

But from such an appeal to the conscience of the public to concern themselves with the unfortunate ones and recognize them as members of the same society, the conception gradually came to mean that 'society' ought to hold itself responsible for the particular material position of all its members, and for assuring that each received what was 'due' to him. It implied that the processes of society should be deliberately directed to particular results and, by personifying society, represented it as a subject endowed with a conscious mind, capable of being guided in its operation by moral principles. 'Social' became more and more the description of the pre-eminent virtue, the attribute in which the good man excelled and the ideal by which communal action was to be guided. [LLL, Vol. 2, p. 79]

Hayek questions whether we have a moral duty to surrender our individual freedoms in the interests of a so-called ‘social justice’ that is administered by government:

. . statements which explicitly connect ‘social and distributive justice’ with the ‘treatment’ by society of the individuals according to their ‘deserts’ bring out most clearly its difference from plain justice, and at the same time the cause of the vacuity of the concept: the demand for ‘social justice’ is addressed not to the individual but to society – yet society, in the strict sense in which it must be distinguished from the apparatus of government, is incapable of acting for a specific purpose, and the demand for 'social justice' therefore becomes a demand that the members of society should organize themselves in a manner which makes it possible to assign particular shares of the product of society to the different individuals or groups. The primary question then becomes whether there exists a moral duty to submit to a power which can co-ordinate the efforts of the members of society with the aim of achieving a particular pattern of distribution regarded as just. [LLL, Vol. 2, p. 64]

In the next series of excerpts, taken from pages 65 to 67, Hayek describes how socialists have learned to cloak their intentions under the noble-sounding concoction of ‘social justice,’ and how naïve altruists, church leaders, and politicians of all stripes (who would all have fitted into the category of Lenin’s “useful idiots”) have been seduced into pursuing this phantasm. Hayek in particular views with alarm the fact that the false moral premises on which ‘social justice’ is based are gradually destroying the foundations of society’s established moral code.

The expression [social justice] of course described from the beginning the aspirations which were at the heart of socialism. Although classical socialism has usually been defined by its demand for the socialization of the means of production, this was for it chiefly a means thought to be essential in order to bring about a 'just' distribution of wealth; and since socialists have later discovered that this redistribution could in a great measure, and against less resistance, be brought about by taxation (and government services financed by it), and have in practice often shelved their earlier demands, the realization of ‘social justice’ has become their chief promise. It might indeed be said that the main difference between the order of society at which classical liberalism aimed and the sort of society into which it is now being transformed is that the former was governed by principles of just individual conduct while the new society is to satisfy the demands for 'social justice' – or, in other words, that the former demanded just action by the individuals while the latter more and more places the duty of justice on authorities with power to command people what to do.

The phrase [‘social justice’] . . . has gradually been taken over from the socialist not only by all other political movements but also by most teachers and preachers of morality. It seems in particular to have been embraced by a large section of the clergy of all Christian denominations, who, while increasingly losing their faith in supernatural revelation, appear to have sought a refuge and consolation in a new ‘social’ religion which substitutes a temporal for a celestial promise of justice, and who hope that they can thus continue their striving for good. The Roman Catholic Church especially has made the aim of ‘social justice’ part of its official doctrine; but the ministers of most Christian denominations appear to vie with each other with such offers of more mundane aims . . .

The various modern authoritarian or dictatorial governments have of course no less proclaimed ‘social justice’ as their chief aim. We have it on the authority of Mr. Andrei Sakharov that millions of men in Russia are the victims of terror that ‘attempts to conceal itself behind the slogan of social justice.’

The commitment to 'social justice' has in fact become the chief outlet for moral emotion, the distinguishing attribute of the good man, and the recognized sign of the possession of a moral conscience.

What we have to deal with in the case of 'social justice' is simply a quasi-religious superstition of the kind which we should respectfully leave in peace so long as it merely makes those happy who hold it, but which we must fight when it becomes the pretext of coercing other men. And the prevailing belief in 'social justice' is at present probably the gravest threat to most other values of a free civilization.

Whether Edward Gibbon was wrong or not, there can be no doubt that moral and religious beliefs can destroy a civilization and that, where such doctrines prevail, not only the most cherished beliefs but also the most revered moral leaders, sometimes saintly figures whose unselfishness is beyond question, may become grave dangers to the values which the same people regard as unshakeable.

It seems to be widely believed that 'social justice' is just a new moral value which we must add to those that we recognized in the past, and that it can be fitted within the existing framework of moral rules. What is not sufficiently recognized is that in order to give this phrase meaning a complete change of the whole character of the social order will have to be effected, and that some of the values which used to govern it will have to be sacrificed. It is such a transformation of society into one of a fundamentally different type which is currently occurring piecemeal and without awareness of the outcome to which it must lead. [LLL, Vol. 2, p.65-67]

Hayek sees the paramount ill effect of ‘social justice’ in that it destroys society’s moral fabric and thus it threatens the very foundations of our civilization. Near the end of Chapter 9 he issues a warning:

[W]e can’t have any morals we like or dream of. Morals, to be viable, must satisfy certain requirements, requirements which we may not be able to specify but may only be able to find out by trial and error. What is required is not merely consistency, or compatibility of the rules as well as the acts demanded by them. A system of morals also must produce a functioning order, capable of maintaining the apparatus of civilization which it presupposes.

We are not familiar with the concept of non-viable systems of morals and certainly cannot observe them anywhere in practice since societies which try them rapidly disappear. But they are being preached, often by widely revered saintly figures, and the societies in decay which we can observe are often societies which have been listening to the teaching of such moral reformers and still revere the destroyers of their society as good men. [LLL, Vol. 2, p. 98]

Even though it is the moral dimension of society that Hayek sees as the most endangered by ‘social justice,’ he also appreciates the well-meaning intentions of “widely revered saintly figures” who are beguiled by its utopian allure. They can be faulted for having distorted their moral values through naïve reasoning (the first on my list of the innate defects of human nature), but their well-intentioned purpose cannot be considered, on its own merits, to be a venal fault, whereas the other two are. However, it is undeniable that the other two (really bad) innate defects of human nature – (2) egalitarian envy, and (3) communal larceny, the ones that actually destroy individual rights and freedoms in a democratic society – are given the opportunity to flourish under the veneer of ‘social justice’ made popular by the idealistic moralizers. In the final analysis, then, the “saintly figures” actually bear the main responsibility for initiating this corrupting process in a democratic society. Hayek, therefore, questions the intellectual honesty of these people:

. . 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 its vacuity is recognized, its use is dishonest. [LLL, Vol. 2, p. 97]

Hayek does not spend much time on what could be called the two “active agents” in what I have identified before as the trio of innate defects in human nature which are the enemies of the “Old Whig” ideals of liberty, namely: (2) egalitarian envy, and (3) communal larceny. There is only a brief statement in the conclusions of Chapter 9, in which “envy” is specifically mentioned and also the phrase “rapacious instincts” which corresponds to what I call “communal larceny”:

More often, however, the gospel of ‘social justice’ aims at much more sordid sentiments: the dislike of people who are better off than oneself, or simply envy, that ‘most anti-social and evil of passions’ as John Stuart Mill called it, that animosity towards great wealth which represents it as a ‘scandal’ that some should enjoy riches while others have basic needs unsatisfied, and camouflages under the name of justice what has nothing to do with justice. At least all those who wish to despoil the rich, not because they expect that some more deserving might enjoy that wealth, but because they regard the very existence of the rich as an outrage, not only cannot claim any moral justification for their demands, but indulge in a wholly irrational passion and in fact harm those to whose rapacious instincts they appeal. [LLL, Vol. 2, p. 98]

Hayek concludes by pointing out how the moral fiber of society is corrupted through the promotion of the “sordid sentiments” by “the cult of social justice”:

But it is not only by encouraging malevolent and harmful prejudices that the cult of ‘social justice’ tends to destroy genuine moral feelings. It also comes, particularly in its more egalitarian forms, into constant conflict with some of the basic moral principles on which any community of free men must rest. This becomes evident when we reflect that the demand that we should equally esteem all our fellow men is irreconcilable with the fact that our whole moral code rests on the approval or disapproval of the conduct of others; and that similarly the traditional postulate that each capable adult is primarily responsible for his own and his dependants’ welfare, meaning that he must not through his own fault become a charge to his friends and fellows, is incompatible with the idea that ‘society’ or government owes each person an appropriate income. [LLL, Vol. 2, p. 99]

For a discussion of egalitarian envy, I am going to turn for assistance to another scholar, Gonzalo Fernandez de la Mora, who has written a book on the subject, titled Egalitarian Envy: The Political Foundations of Social Justice (1987). Mora describes egalitarian envy and its causes and effects in blunt fashion, as demonstrated by the following excerpts.

‘Social justice’ provides a covert legitimization for egalitarian envy:

Public envy cannot be organized nor disseminated without a certain amount of exteriority but since the feeling cannot be acknowledged it needs a covert legitimization that usually appears as an egalitarian ideology, with charity or justice as fronts. While individual envy may be simply secret, collective envy must be hypocritical. [p. 71]

Demagogic politicians skillfully exploit feelings of class inferiority and envy in a society and promise to assuage such feelings by instituting ‘social justice’:

Demagogues appeal to envy because its universality makes potential victims of all the people and because the invincible inequality of our personal capabilities and of the irremediable limitation of many social goods makes it inevitable that the majority will feel inferior to certain minorities. The promotion of this envious feeling of inferiority is the dominant political tactic, at least in the present age. The demagogic promotion of envy, as with everything else that refers to this unpublished feeling, is not carried out in public but under cover. A contemporary disguise of collective envy is what is called “social justice.” How does this ideological and derivative argumentation run? A fundamental postulate is established that the more just a society is, the more equal its members are in opportunities, position, and wealth; and immediately it is established that the party will fight without rest to achieve such “justice.” The appeal of this axiom and of such a program is evidently unbeatable for the envious, since it promises to abolish the unassimilated inferiority that causes them so much pain. Equality is a paradisiacal promise for the envious, the definitive incentive. [p. 93]

In the following, ‘distributive economic justice’ is promised. Here de la Mora uses an interesting expression – “collective irresponsibility” – which I interpret as equivalent to “communal larceny”:

If, in addition, inequality is emphasized, if it is called arbitrary and even unlawful, if a gratuitous redistribution is promised, if the guilty conscience of the envious is dissolved into collective irresponsibility – the party or the class – and if it is made to appear that all this rests on a moral foundation, it is obvious that the number of the envious will not only multiply but that their envy will intensify. Egalitarianism is the opiate of the envious, and demagogues are the self-interested distributors of its massive consumption. [p. 94]

Near the end of his book, de la Mora ties it all together, inferring that it is in our basic nature to expropriate, to rob, and to destroy the goods of those we regard as our superiors, in order to humble and humiliate them:

At the root of all egalitarian desire there is a mimetic moment that links with our infantile tendencies: to have, to do, and be the same as the other. This phenomenon finds perfect articulation through natural evolution. The pathology of this feeling is the discovery that the instinct of imitation degenerates into the will to expropriate, or rob, or the desire to destroy so that the other does not have more. In this last case, the goal is not to become equal through imitation, but to lower the other. Such egalitarianism, the typical product of envy, has produced a social current that has continued to grow since the apparition of Marxism and whose true features cannot be seen unless unmasked, for envy is surreptitious, hypocritical, and simulating. [p. 185]

Finally, let me add a few remarks concerning the meaning of “communal larceny.” There is an axiom that has been proven to hold historically, from the most rigid totalitarian socialist states to the gentlest of welfare-state democracies; it says: “When everything is owned by everyone, nobody owns anything.” When a material good of any kind is doled out to you by the state, you view it as a “free” good, very much like the “commons” pasture land of old that was shared by all villagers. The pasture was a largesse of Nature, the dole is a largesse of Government. You have not had to personally care for it or work for it. It is given to you for Free. But because it is there for you to have without expending a personal effort to earn it, or grow it, or make it (as the case may be), you do not see any reason why you should not help yourself to more of it by stealing – well, not really stealing, you say, because nobody owns it!

And thus we have “communal larceny” which was practiced universally in all the Soviet “peoples democracies;” every imaginable item that could be stolen from the state by the people, was stolen. It was the only means by which the common people could obtain the material goods they needed to create some degree of a meaningful personal life. In the “peoples democracies” practically everyone was a thief, although they did not consider themselves as such.

In the welfare-state democracies “communal larceny” takes on more sophisticated and elegant forms, but the same attitude prevails, i.e., that it is free money or free stuff if it is provided by government. Although it is true that the most intricate schemes to milk the government’s welfare cow are devised and carried out by organized groups of criminals, thousands of ordinary people cheat the welfare programs daily in their own petty ways very much in the same spirit, and without any moral qualms, just like the people who stole from the state in the defunct socialist states.

There is another form of “communal larceny” that is unique to democratic welfare-states. Business enterprises, large and small, are invited by government to provide goods and services for agencies dealing with various social and environmental programs. The businesses are never too shy to charge exorbitant fees and prices for whatever it is they provide, because, again, it is largesse dispensed by government, and government funds are like the grass of a commons pasture – you take all that you can get.

Of course, whether government funds are stolen from welfare programs by individuals, or plundered from government by businesses which submit contrived expenditures and cost-overruns on government grants and contracts, what the thieves conveniently forget is that the funds they steal do not originate at some nebulous source called “the government,” but rather have been collected (some would say extorted) by government through taxing the incomes, products and labor of the productive segment of the citizenry.

It is clear, then, that the two varieties of “communal larceny” that are practiced in a welfare-state democracy are actually theft of your neighbor’s property. Taxation in a welfare-state, to begin with, is very progressive and thereby already represents, by its unequal treatment of individuals, a direct assault on the “Old Whig” principle of equal treatment under equal laws for all; individual rights and liberties are thus already violated by taxation. “Communal larceny” plunders funds that government has collected through progressive taxation; that forces government to increase taxes even more, thus constricting even more the freedom for economic action by individuals.

We can now see how conveniently the three undesirable traits in human nature: (1) distortion of moral values, (2) egalitarian envy, and (3) communal larceny, all intertwine and bolster each other under the cover of an invented phantom called ‘social justice’.

There is a paradox common to all the societies which have chosen, to begin with, to live in a liberal democracy, and very likely will also be experienced by societies which may chose such government in the future. The paradox is this:

A society opts initially for liberal democracy because it thinks that it values individual rights and liberties above all else. Beautifully-worded, nobly inspired constitutions are written attesting to this fact. But of course, under such a constitution (written or, as in England, implied by long-standing laws), men are considered equal only before the law, but not as having been born with equal abilities. Inevitably, in such a liberal market-order democracy of free men, great inequalities in wealth and status soon develop. We can mark this as the point in said liberal democracy at which “Old Whig” ideals of liberty come under threat.

First to be heard from are the moralizers. From pulpit and dais, in print and by airwaves, they deplore the human indignity and squalor suffered by the indigent, while the rich live in profligate luxury. That is an outrage, that is unfair, that is immoral! Something must be done to right these wrongs. Society itself is responsible for having caused the wrongs, therefore society is responsible for righting them. But society can only act through its democratically elected government. Therefore, government must act to right the wrongs.

The chorus of moralizers is soon joined by the envious. There is a significant portion of them in any society; they hate the rich and socially prominent and would love to see them humbled and dispossessed of their wealth and status. At this stage, the typical politician starts to react to the hue and cry of what he or she senses is by now a substantial block of voters with a grievance. The astute politician adopts the cause of the disaffected group for his own; he and like-minded politicians of his party introduce and pass legislation that will right the wrongs under the rubric of ‘social justice’. Doing so usually requires a clever circumvention of the constitution and sometimes a direct amendment of it. In either case, the first blows against “Old Whig” ideals of liberty have been dealt at this point. And, mark this dear reader, the politicians responsible for the legislation are returned to office by a comfortable margin of the popular vote.

Passing of any particular piece of ‘social justice’ legislation results in immediate increase of support for the politicians who pass it by the group of people who are the beneficiaries of that particular legislation; among the grateful voters are also people who now take advantage of the legislation through “communal larceny.” And, the politicians who passed the legislation are thereafter returned to office by a landslide.

At this stage the society that started out as a liberal democracy, treasuring individual rights and liberties, finds itself mired in a welfare-state quasi-democracy. The “old Whig” ideals of liberty seem to have vanished without the society as a whole ever noticing how the disappearance of these ideals came about or what caused it. However, most people notice at their own individual level that their freedom of action, particularly in the economic sector, is now restricted, not by any law pertaining to just individual conduct, but by some government regulation which either forces them to take an action against their will or forbids them to take an action that, before the regulation was instituted, was perfectly legal according to the Rule of Law under which they were accustomed to conduct their affairs.

Therein lies the paradox of a democratic society: it seems destined to first exalt individual liberty and, no sooner having secured it, to desire to smother it. I maintain that there are traits in our innate human nature that compel us to follow this course whenever we are free (as we are when living in a liberal democracy) to determine our own fate by making our choices at the ballot box.

One can ask whether it can be truly so that men could never devise a “perfect” constitution – one that would enshrine individual liberties for all time to come. I think the answer to this question is that it is possible in theory to create such a constitution, but certain of the articles that would have to be included in it would be of so severe a nature that in practice no society would be willing to adopt it.

Hayek has suggested in several instances in his writings reforms that would improve a democratic constitution. He devotes Chapter 17 of LLL entirely to A Model Constitution, in which he outlines its structure and functions, its in-built checks and balances. Although the constitution he recommends, or some variant of it, looks attractive upon first consideration, on contemplating it further one can still find within it loop-holes and avenues which determined seekers after ‘social justice’ and demagogic politicians can exploit to circumvent and corrupt it.

I have come to the rather simple conclusion that an “iron-clad” constitution, one that would enshrine individual liberties for all time to come would have to contain THE article forbidding the enacting by any legislature bound by that constitution of any laws or regulations of unequal application, the sort that discriminate in any way in favor of a specific segment of society or against it. Were we the people to ratify such a constitution (and it is highly unlikely that we ever would), we would still face an insurmountable problem: who could we trust to enforce the provisions of that particular article of the constitution? We know from experience that we cannot put any trust in the courts to faithfully interpret any constitution, let alone one which would have such a draconian provision in it.

One can only fantasize in a Platonic manner about an entity which would be able to enforce such a constitution: it would have to be truly incorruptible and have absolute power over our democracy; it would in effect be an external control over our society and consequently we could no longer claim to be living in a self-governing democracy. And that, too, would be a cruel paradox, but one that we need not contemplate because it is only a fantasy. And therefore, I have been forced to arrive, sadly, at the only possible conclusion which is that constitutional safeguards of “Old Whig” ideals of liberty cannot endure for long in a liberal democracy.