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Robert Bork

  
  
  
  
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Interview with Friedrich A. Hayek by Robert Bork
Thanks to Pacific Academy Advanced Studies for permission to distribute this program.

Digitized by: New Media - UFM.
Digitization: Mario Estrada, Jorge Samayoa; content analysis: Alex Weller; content reviser: Daphne Ortiz; publication: Rebeca Zuñiga

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BORK: Doctor Hayek, I think that if there's one area in which I disagree with you slightly, it is about-- We were discussing the intellectuals, and I guess it is that I see something a little more sinister about them than you do.  
Isn't it significant that, as you watch the intellectual classes, they tend to move the society always in one direction?  That is, towards more regulation, towards more intervention, towards more politicization of the economy.  And that you notice on campuses, at least the campuses I'm familiar with, an enormous resistance by very bright people to what are really fairly basic and simple ideas in economics, which suggests--may suggest--that something more than intellectual error is at work. 
HAYEK: Is it really?  You know, the resistance against being guided by something which is unintelligible to them is, I think, quite understandable in an intellectual.  Go back to the origin of it all.  Descartes, of course, explicitly argued only that we should not believeanything which we did not understand, but he immediately applied it that we should not acceptany rules which we did not understand.  And the intellectual has very strongly this feeling that what is not comprehensible must be nonsense, and to him the rules he's required to obey are unintelligible and therefore nonsense.  He defines rationalalmost as intelligible, and anything which is not intelligible to him is automatically irrational, and he is opposed to it. 
BORK: Well, I'll give you an example.  Among academic economists and among academic lawyers who deal with economics, antitrust, for example, there has been an enormous acceptance of certain theories about oligopoly, about concentrated industries: that where you have three, four, five, six firms in a market, they will--without colluding, necessarily, as a monopolist would behave--learn to act together, as if they were a monopolist.  
There seems almost no evidence for that theory, but it's enormously popular; and it seems to me that without a predisposition on the part of intellectuals to dislike the private sector and to dislike freedom in the economic sphere, that that theory could hardly become as popular as it has become. 
HAYEK: Yes, but that dislike, I think, is due to it being unintelligible to them.  They want to make it intelligible--translucent--to them.  They think nothing can be good unless it is demonstrated to you that in the particular case it achieves a good object.  
And that, of course, is impossible.  You can only understand the structure as the principle of it, but you couldn't possibly demonstrate that in the particular event the particular change has a purpose, because it always is connected with the whole system which is the rule.  We can only understand in principle, but not in detail.  So I think I would give [the intellectuals] the benefit of the doubt, at least.  I think in most instances it's a deeply ingrained intellectual attitude which forces them to disapprove of something which seems to them unintelligible, and to prefer something which is visibly directed to a good purpose. 
BORK: Do you think it has to do with the nature of intellectual work? 
HAYEK: Yes.  The whole training of the scientists-- Of course, scientists are pretty bad, but they're not as bad as what I call the intellectual, a certain dealer in ideas, you know.  They are really the worst part.  But I think the man who's learned a little science, the little general problems, lacks the humility the real scientist gradually acquires.  The typical intellectual believes everything must be explainable, while the scientist knows that a great many things are not, in our present state of knowledge.  
The good scientist is essentially a humble person.  But you already have the great difference in that respect between, say, the scientist and the engineer.  The engineer is the typical rationalist, and he dislikes anything which he cannot explain and which he can't see how it works.  What I now call constructivism I used to call the engineering attitude of mind, because the word is very frequently used.  They want to direct the economy as an engineer directs an enterprise.  The whole idea of planning is essentially an engineering approach to the economic world. 
BORK: I suppose if we include in intellectual classes not merely people who have intellectual competence but people whose work is with ideas, whether or not they're very good at ideas, that includes journalists, professionals, government staffs, and so forth.  They, not having the full intellectual understanding of the difficulties, would tend to be more arrogant in their assumptions about what planning can do.  Perhaps it is the explosion of those classes in modern times that has led to the accelerating-- 
HAYEK: It's partly the specialization.  You see, the modern specialist is very frequently not an educated person.  He knows only his particular field, and there he thinks, particularly if he is in any of the mechanical subjects, that he ought to be able to explain everything, and that he can master the detail of it.  I find, for instance, that on the whole, physical scientists are much more inclined to a dirigist attitude than the biological scientist.  
The biological scientists are aware of the impenetrable complexity; they know that you sometimes can only explain the principle on which something works, not being able to specify in detail how it ought to work.  The physicist believes that you must be able to reproduce every intellectual model in detail, that you really master everything.  
That's why I've come to the conclusion that the physical sciences are really the sciences of the simple phenomena.  As you move from the physical sciences to the biological and the social sciences, you get into more and more complex phenomena.  The essence of complex phenomena is that you can explain the principle on which they work, but you never can master all the data which enter into this complex phenomena.  Therefore, even a perfect theory does not yet enable you to predict what's going to happen, because you have a perfect theory but you never know all the data you have to insert into the scheme of the theory.  
BORK: Well, if the biologists are led to modesty by the fact that they deal with complex systems, why isn't the same thing true of sociologists, who are not noted for their modesty, or for a number of other desirable attributes they're not noted for? 
HAYEK: Because the whole science of sociology is based on the idea that you can explain society by a very simple model.  I don't see any justification for the existence of the theoretical science of sociology, just as there is [no justification for the] existence of the theoretical science of naturology.  I mean, the separate problems of society are difficult enough.  To assume that you can have a simple theoretical model which explains the functioning of society is just unfounded.  Sociologists have done admirable empirical work on detailed questions, but I don't think there is such a thing as a science of sociology. 
BORK: Do you think the reason they haven't been led to a modesty which would be more becoming to them is that they started with a theory about the possibility of understanding the entire society, which has prevented them from seeing the impossibility of it? 
HAYEK: Yes.  It's very typical thinking that was invented by Auguste Comte, who is the prototype of my scientistic approach. 
BORK: I want to go back for a moment to the question of generality as a desirable attribute of law, because I don't fully understand it.  Why would it not be possible, for example, to state a progressive income tax in terms of generality?  Anybody who makes more than $50,000 is taxed at a 70 percent rate.  Why is that not a general law which has unforeseeable consequences, because we certainly don't know who's going to make that much money? 
HAYEK: On the whole, yes, I think the point is exactly that it is aimed against a class of known people. 
BORK: You mean we know their names.  But I suppose one might almost say that about criminal-- 
HAYEK: In each group, people will know who are the people who will pay the higher rate, but not for the nation at large. 
BORK: And not for the future?
HAYEK: It depends how far you extend the future. 
BORK: Well, but how does that differ from the criminal law?  We adopt a law against armed robbery.  We can identify sociological classes who will be more affected by that law than anybody else.  We can identify, perhaps in some cases, individuals. 
HAYEK: Well, the purpose of the law is not to punish these people, but to prevent them from doing it.  It's an entirely different thing to exclude a certain kind of conduct. 
BORK: But suppose a socialist society, or people with socialist impulses--say that we think it's quite bad to have a society in which people have more than $50,000 annually, and the purpose of our law is to prevent you [from doing so].  In fact, the income tax rate is 100 percent at $50,000.  That would be a general law and would meet the attributes of-- Maybe it's a bad social policy, but as law it doesn't lack generality, does it? 
HAYEK: I admit this is a thing which has troubled me a great deal.  What sense discriminating taxation, which makes income classes a basis of discrimination, can still be brought under the concept of a general law or not.  It's perhaps more of a feeling than anything I can precisely justify.  That you can carry the idea of progression to a point where it certainly is aimed at particular people, there is no question; that the principle of progression can be abused, I am certain.  Whether you can draw any line within which it is not likely to be abused, I doubt rather. 
BORK: Yes.  I find the attribute of generality, rather than specificity, a very difficult one in many cases. 
HAYEK: Oh, yes.  I have tried to avoid the terms as much as possible.  The "rules which affect unknown people in particular circumstances that are also unpredictable" is the phrase which I prefer to use.  This, in fact, has been elaborated--arrived at--by many of the nineteenth-century legal philosophers. 
BORK: Yes, but it excludes an awful lot of the social legislation that society demands today.  It's social legislation drawn to say that society demands it, but it has certainly grown up through democratic procedures. 
HAYEK: Oh, it certainly has.  But the question is precisely whether the powers of the democratic representatives ought to extend to measures which are aimed at particular people or even particular known groups of people. 
BORK: Let me understand that.  Your objection to that could be of two sorts.  It could be that there's something inherently wrong with aiming at a known group.  I'm not sure why that's true--
HAYEK: With coercive measures.  To apply coercion in a discriminating fashion in the service functions of government is merely a limitation of coercive law. 
BORK: But why is it wrong to aim-- For example, we regularly take--we used to until the all-volunteer army came in, but I guess we're going to do away with that eventually--we used to conscript coercively people of a defined class to do our fighting for us, and that would seem to be a law of the very kind that you're objecting to. 
HAYEK: Well, the problem is that it's a discrimination between males and females.  The normal thing is, of course, that every man has to [register at] a certain phase of his age; so if he was not suitable for armed service, [service would be extended to] another of the duties.  It should be the same for all men.  The problem is one of the distinction between sexes.  But even there, people have been insisting that women should do some sort of national service instead. 
BORK: Well, in fact, some of them are insisting that women be put into fighting.  I've heard Margaret Mead object to that on the grounds that it would make wars too savage. 
HAYEK: Probably true.  You've heard the stories about the French Revolution--the behavior of the women in the revolutionary crowd--which rather confirms the notion that women are much worse-- 
BORK: Yes, we conscripted men in order to moderate war.  As we discussed your position, I was wondering whether there aren't constructivist aspects of your own outlook.  That is, you put upon the intellectual or the lawmaker the need to understand a system and how it operates, and then to make adjustments in the system which has evolved. 
HAYEK: No, I'm afraid that's not what I mean.  In fact, I'm convinced that you don't leave it to the lawmakers to judge; they don't possess the capacity to decide.  I want to do it in the form of a reconstruction of the mechanism: two distinct bodies with different tasks, so defined that a constitutional court could distinguish whether either of the two bodies had exceeded their tasks.  
You confine the one to laying down what I call "laws in the strict sense," which for brevity we sometimes use the phrase "general law."  I think this must be defined much more carefully.  The other, under these laws, is entitled to organize services, but nothing else.  Services means directing resources put under the command of government, but not in the position to direct the private citizen at all.  I think the mechanism of such a constitution would force the authorities to limit themselves, because it would just be a situation in which nobody would have set power to do those kinds of things.  My constitution indeed involves that certain things could not be done at all by anybody. 
BORK: Well, you put an awful lot of weight on judges there, and I have some familiarity with judges.  
What you're going to do, I gather, is have one legislative body which may pass only general rules of just conduct; and you'll [also] have a court which will have the power to say whether or not those are in fact general rules of just conduct.  You have somehow to insulate that court from the philosophy of constructivist gradualism, because if the judges-- Well, in this country, already our experience under the American Constitution is that for many years the Supreme Court of the United States struck down laws interfering with matters within states, on the grounds that they were not interstate commerce and that federal power extended only to interstate commerce.  
The political attitude of the country changed, and the country demanded more regulation--or the New Deal demanded more regulation.  The court gave way.  And the court has now almost completely abandoned that form of protection.  It has now moved on [to the point]--and I think it's significant--that the most frequently used part of the Constitution now is the equal-protection clause, by which the court is enforcing the modern passion for equality.  I wonder, given that kind of institutional history, whether any institutional innovation can save us, or whether it isn't really just an intellectual/political debate that will save us? 
HAYEK: You know, in my opinion the American Constitution failed essentially because it contains no definition of what a law is, and that, of course, deprives the Supreme Court of guidance.  I believe that, instead of having the Bill of Rights, you need a single clause saying that coercion can be exercised only according to and now following a definition of law which is of some language which of course explicates what I, in a brief phrase, call general rules.  
That would, in the first instance, make all special protected rights unnecessary, and it would include all.  It excludes all discriminatory action on the part of government, and it would, of course, give the court guidance.  The court is still necessary because I am sure that no definition of law you can now put into words is perfect.  You will, in the course of time, have to improve that definition.  That would be the essential task of that court.  But it understands that that is its main task.  I don't think this perversion of the task of the Supreme Court which has taken place in the United States would take place.  You can't exclude it, but I am optimistic. 
BORK: Well, I guess I have a little gloomier view of the-- 
HAYEK: Well, I'm not surprised that somebody who's been watching the development of the Supreme Court takes a gloomy view of it. 
BORK: You know, there is something like what you suggest in the Constitution now, which is the equal-protection clause.  It's like your rule of no discrimination.  Two things happen: one is that somebody has to classify what things are alike, in order to know whether there is discrimination. 
HAYEK: I know that.  I know. 
BORK: --and that means that you've handed the power--the ultimate power of legislation--to a court.  That's why I suppose I'm a little bit gloomy about the possibility of telling a court, "No discrimination," and then leaving it to them to say which things are alike and which things are different, in order to define discrimination. 
HAYEK: Well, if you confine that prohibition of discrimination to the coercive action of government, I think it becomes much more precise.  In the American interpretation it has become everything which has different effects on the people--they interpret this as discrimination.  It doesn't require that "discrimination" be what the government does.  
BORK: Well, I don't want to pursue this too far, but I am reminded of a Supreme Court case which raised this in extreme terms.  Oklahoma passed a statute which said, in effect, that criminals convicted for the third time for a crime of violence--a felony involving violence--should be sterilized.  The theory was that it was genetic.  Nobody knows.  But the Supreme Court looked at that law and said, "Well, a bank robber who robs for the third time will be sterilized, but an embezzler in the bank will not be."  Those people are alike; that is discriminatory; the law failed.  That's my point.  Once you give this power to define discrimination, that kind of thing will be done. 
HAYEK: Yes, I have no ready answers for this. 
BORK: Well, my suspicion is that kind of rule transfers power from popular assemblies to courts.  The other thing about it, if I may pursue it for a moment, is that no two people probably agree which things are alike and which things are different.  We all classify things slightly differently, and so if you have a court voting on it, although each justice may be perfectly consistent, the output of the court will become incoherent, because you'll get very different results as the vote shifts on different issues.  That's only a way of expressing my own reservations about institutional cures to what are philosophical problems. 
HAYEK: But it seems to me that you're thinking too much about the question of equality of effects and not equality of government action.  On equality of effects, no two people will agree.  I am entirely in agreement with you on this.  But when it comes to equality of treatment by government--and not including under "treatment" the whole results for the people, but only what the government does--I still believe you can maintain this. 
BORK: I certainly hope you prove to be correct on that.  You were talking, before we began to tape this--I thought it was quite interesting, and I was hoping you would repeat it--about your views that the Marxists have the price theory upside down, or backwards, and I wonder if you'd expound on that. 
HAYEK: Well, the belief that prices are determined by what people have done is misleading.  The function of prices is to tell people what they ought to do, and the Marxist idea is caused by a very primitive conception of the task of science.  To think of everything being explainable in terms of a single cause and a single effect doesn't help us to understand complex, self-maintaining structures.  We constantly have a sort of reverse causation.  
The thing is being maintained only by certain reverse effects, something like the negative feedback effect and that sort of thing.  In that sense, prices must be interpreted as signals for what people ought to do and cannot be said as determined by what people have done.  I would go so far as [to say] that nobody--and therefore no Marxist who believes that prices are determined by past events--can ever understand the economic system.  
Marxism--and every other "objective" theory of value, even the Ricardian--blinds you to the essential function of prices in securing a coordination in the market.  The most typical instance is-- We have already spoken about John Stuart Mill.  John Stuart Mill, who stuck to the objective value theory of [David] Ricardo, was led by this to argue that while there are laws of production there are no laws of distribution--we are free to determine the distribution--just because he did not understand that it was the prices which told people what they ought to do. 
BORK: Dr. Hayek, clearly, in your work, you see a strong relationship between property, and its security, and freedom.  I wonder if you could describe that relationship as you see it for us. 
HAYEK: Well, to be able to pursue one's own aims it is essential to know what means are available to one.  I think that's only possible by some recognized procedure which decides about the sphere of command of the resources which each person has.  We must all, at anyone moment, know which means we can use for our own purposes, and we can aim at changing that protected sphere by acquiring new means, which then are at our use or disposal.  In fact, the general aim at acquiring means that one can later use for one's own purposes seems to me essential to freedom and can be satisfied by some rules of property in the material means of production.  
BORK: Property is essential to freedom, I suppose--are you saying?--because it gives you an independence of government which you would not otherwise have?  Would you talk about the terms--
HAYEK: Independence of government and my fellows.  It's really a sphere in which I cannot be coerced.  And if freedom is freedom from coercion, it depends really on my being able to assemble a set of means for my purposes.  That is the essential condition for the rational pursuit of an aim I set for myself.  If I am at each stage dependent on, as it were, the permission or consent of any other person, I could never systematically pursue my own ends. 
BORK: I think this must go back to our prior discussion of the fact that we are becoming a freer society in some senses--the sense of permissiveness toward what may be said, what may be done, sexual permissiveness, and so forth.  But what you're saying is that, at the same time, we're becoming more heavily regulated in our property rights, which are crucial, and these other freedoms will prove illusory if we lose our control of property rights. 
HAYEK: It depends on what you mean by regulated.  I would confine regulation to the approval or disapproval of particular ends pursued.  It is merely a question of delimiting this sphere of means I can use for my own purposes; so long as I can determine for what ends I use them, I am free. 
BORK: No, I was thinking of the overall condition of freedom in the society.  I suppose what the point would be is that the government is now so heavily confiscating and regulating property that if those freedoms ultimately disappear, these other freedoms that we think we have will disappear in consequence--once the government has control of the economic base. 
HAYEK: Yes.  You know, that's a field in which I have great difficulty, particularly when it comes to the problem of expropriation for any purpose.  That, of course, is the most severe infringement of the principle of private property, and one where I have to admit there are circumstances in which it is inevitable.  It's a most difficult point to draw my line.  I think the only precaution I would wish is by way of the rules of compensation; I would even be inclined to devise some multiple compensation in the case of expropriation to put a required limit on expropriation.  
But apart from this very troubling issue of expropriation, I think all limitations--certainly all discriminatory infringements of property rights--I object to.  I think I ought to bring in here another point.  Most of the real need for such measures is probably on a local and not on a national sphere, and I'm inclined, in a way, to give the local authorities power which I would deny to the central government, because people can vote with their feet against what the local governments can do. 
BORK: And do.  This concept of the protection of property, of course, is now in tension, or in opposition to, demands made in the name of social justice.  You think that social justice is not only used as a concept for the wrong purposes but you, in fact, think it is no concept, I gather. 
HAYEK: It's completely empty.  I'm convinced it's completely empty.  You see, justice is an attribute of human action, not of the state of affairs, and the application of the term social justice assumes a judgment of the justice of a state of affairs irrespective of how it has been brought about.  That deprives it of its meaning.  Nothing to do with justice is an attribute of human action. 
BORK: But you yourself have a preference for a certain kind of a society, which has a maximum amount of freedom in it.  And I suppose you wouldn't call that a socially just society, but what general term would you use to describe it? 
HAYEK: Well, I think I would just stick to "the free society," or "the society of free men"--"free persons." 
BORK: But doesn't the demand for social justice merely mean-- It's a shorthand for a preference for a different kind of society. 
HAYEK: Well, it's used like that, no doubt, but why then speak about justice?  It's to appeal to people to support things which they otherwise would not support. 
BORK: I see.  Your objection really is that it's a form of fraudulent rhetoric-- 
HAYEK: Yes.
BORK: --because it implies a standard of justice against which a society can be measured. 
HAYEK: Yes, exactly, exactly. 
BORK: And actually what they I really talking about is a set of preferences, not a standard for measurement. 
HAYEK: Well, it's really a pretense that there is some common principle which people share with each other.  But if they were deprived of the use of this term, they would have to admit it's their personal preference.  
BORK: It's an unfair form of rhetoric.  I see.  All right.  Now, you make the strong statement in your book that the necessity for rules arises out of ignorance.  But you also can see, I gather, that there are other reasons for rules.  
For example, you say at one point that in a society of omniscient persons--where everybody knew all the facts and all of the effects of actions--there would be no room for a conception of justice, because everyone would know the effects of an action and the relative importance of those effects.  But suppose the interests of omniscient persons differ, and they adopt different modes of conduct producing different effects.  Is it impossible to have a concept of justice merely because you're omniscient?  I mean, doesn't justice--and therefore rules--have something to do not only with ignorance or omniscience but with evil or minority interests? 
HAYEK: Perhaps my statement is too strong.  Omniscience itself would not be sufficient, but omniscience would at least create the possibility of agreeing on the things which, without omniscience, you can't [agree on].  While you may be unable to agree even with omniscience, without it, it's clearly totally impossible. 
BORK: Yes, you could have evil omniscient persons.  So the rules depend, or arise, not merely because of ignorance but because of disagreement about morals-- 
HAYEK: Socially.
BORK: --and disagreement about interests.  Now, in this area of societies which evolve spontaneously, for which you show a strong preference, I mentioned earlier that there are societies that evolved in an unfree way.  But you said, well, when they're unfree they don't evolve, and therefore we can't say that evolution leads to unfreedom.  It has been suggested that feudal structures really evolved spontaneously. 
HAYEK: I don't think so.  They arose from military conquest. 
BORK: Always?  Or were there occasions-- 
HAYEK: I haven't come across it.  I haven't really examined history on this, but in the European history with which I am most familiar, it's fairly clear that it was military bands which conquered the country.  It seems that the German tribes were expanded from Germany south and west.  Conquerors of the country established a feudal regime.  The conqueror acquiring the land and having people working as serfs on it seems to have been the origin of-- 
BORK: Or I suppose you would suggest that sometimes it may have grown up in defense against, for the need for protection against, outsiders, but-- 
HAYEK: Yes, of course.  It need not have been a foreign conqueror; it very frequently was the need for establishing a military class in defense, who then became dominant in a feudal way.  But it was really military organization rather than economic organization for feudalism. 
BORK: I was wondering, because it seemed to me at times in your book that you were identifying the evolutionary society as the good society, and the evolutionary law as the good law.  Yet you also had another value, which was freedom, and I guess what you're really saying, as I understand it now, is that in fact those two become one. 
HAYEK: Yes. 
BORK: If it evolves, it will be a free society. 
HAYEK: Evolution creates a possibility of choice only under freedom.  If you do not have freedom, the thing is directed by a superior authority.  You have no longer a selective evolution, where the better and the more effective succeeds, but what succeeds is determined by those who are in power. 
BORK: Oh, I see, it's the process of evolution that is indistinguishable from freedom; but that is not to deny that the process of evolution may lead to an unfree state. 
HAYEK: It may well do that, yes.  That's why freedom needs safeguards. 
BORK: That's why the need for legislation. 
HAYEK: Yes.  Legislation ought to be a safeguard of freedom, but it can be used to suppress freedom.  That's why we need principled legislation. 
BORK: We certainly do, but I think I've expressed my doubts about that.  Well, that really means, then, if we're talking about an evolutionary society--one without strong central direction; one in which property is safeguarded--that really means that your conception of justice is really closely bound up with a capitalist order, or at least a free market order? 
HAYEK: A free-market order based on private property, yes.  You know, that's a very old theory.  I think John Locke already argued that-- In fact, he asserts at one stage that the proposition which can be demonstrated, like any proposition of Euclid, is that without property there can be no justice. 
BORK: Well, I'm having a little trouble with that word justice.  Is justice, in your thought, anything other than those rules which are required to maintain freedom?  Does it have any other content than that? 
HAYEK: I don't think you have rules of conduct, but you emphasize rules that determine a state of affairs.  We can even describe a desirable state of affairs in the form of rules.  They should not be rules of conduct; rules of conduct [should be] only for a dictator, not for the individuals.  Rules of individual conduct which lead to a peaceful society require private property as part of the rules.  This is the way I would put it. 
BORK: Yes, but we've discussed what you call the vexing question of the relationship between justice and law, and I'm not quite sure what justice is in this context except those attributes of law which lead to a free society.  Is that it, or are there more requirements of justice? 
HAYEK: I think it is uniformity for all people. 
BORK: But is ["uniformity for all people"] derived from the need for freedom, or is that derived from an independent moral base? 
HAYEK: I think it derives from the need for freedom.  If [laws] are not uniform, it means that somebody can discriminate; it means there are some people who are really subject to the people who can discriminate.  Being independent of the coercion of other people excludes any such discrimination by an authority.  
BORK: So the whole concept of justice describes those attributes of law which we have identified as being necessary for the maintenance of a free society, and there is no other source. 
HAYEK: Yes. 
BORK: Now, you also talk about--in your second volume particularly--what it is that a judge or a legislator must do to develop a system of law.  You describe, for example, the judge or the legislator when he faces a situation not faced before and not recognized before.  You write of his need to understand all of the rules the society already has in order to frame a new rule which is consistent and compatible with those and not contradictory.  Doesn't that really plunge you into a requirement of something approaching omniscience and get you into the trouble that the constructivist-rationalists have? 
HAYEK: Not really omniscience.  To pick a task for any brain, you can try until you gradually achieve it.  But the condition is merely a double consistency.  It's, on the one hand, compatibility of anyone rule with the rest of the rules--not only logical compatibility but also aiming at the same ultimate results.  I mean, the rules can conflict not only logically but also by aiming at different results which then conflict with the others.  So you have to aim at consistency in the system in this double sense: noncontradiction between the rules themselves and noncontradiction between the ends at which they aim. 
BORK: That raises two kinds of problems for me.  You say that no single mind can really do that.  When I think of, not a single mind but, say, a Supreme Court of nine people trying to do that, I begin to despair of the possibility of developing law with that precision and intellectuality.  But in addition to that-- 
HAYEK: Well, the law makes mistakes in its development which can later be corrected. 
BORK: Well, yes, or compounded.  But why is consistency in rules required?  Why may not a society take inconsistent moral positions on issues? 
HAYEK: Because necessarily the decisions are uncertain.  Wherever there is a conflict, that means there are two possible conclusions to be resolved--two different conclusions.  You obey either the one or the other, and whichever you choose, you get a different result.  And I think the aim is-- 
BORK: Oh, I see what you mean.  You mean it's alright to have a rule that applies there and a rule that applies over here to different subject matters, and they may be philosophically and morally inconsistent, but that's all right as long as they don't conflict in the individual case where a decision has to be made. 
HAYEK: But they're bound soon to conflict in an individual case. 
BORK: Of course, it has been said--and I was raised to believe it, probably by legal positivists whom I didn't recognize in their guise (actually by legal realists)--that law really is like a system of parables, and for every parable that looks in one direction, there is its exact opposite.  And that's what gives judges freedom.  "A stitch in time saves nine," but "Haste makes waste."  And law is inevitably like that because human life is like that.  So clear general rules become in a sense impossible, and what results is a set of opposing conceptions between which the judge chooses in individual cases. 
HAYEK: On the basis of what? 
BORK: Well, that we don't know.  Well, we do know, unfortunately.  He may choose because many judges have become constructivist-rationalists and have decided to improve the society, which is quite bad; he may choose because he doesn't quite understand, which is quite common; or he may choose because he thinks the temper of the times--the general era of moral expectations in which he lives--says that in this case he chooses "A stitch in time saves nine" rather than "Haste makes waste."  At the margin where these two compete, it's almost an intuitional judgment. 
HAYEK: Yes, what it amounts to is that the judge is not really guided by the inherent structure of the law, but by certain extralegal ideological concepts.  That's just what I would like to exclude. 
BORK: I'm afraid that's what's inevitable.  That's what's troubling me about-- 
HAYEK: Is it really inevitable?  You see, it's so much more marked in the United States than elsewhere that I wonder whether this is not really the result of a peculiar tradition. 
BORK: Well, let me merely suggest that it may be so much more marked here than elsewhere precisely because we have a written constitution, which gives judges an enormous power that they do not possess elsewhere. 
HAYEK: But is this a necessary fact of a constitution, or is it the effect of a particular form of constitution? 
BORK: I would think it's a necessary effect of saying to judges, "Here is holy writ.  You are the sole interpreters of it."  That begins to develop attitudes of mind and gives great freedom, because that holy writ is necessarily written in very general terms. 
HAYEK: Yes.  You know, this may lead away from what you are saying, but it reminds me that my whole theory leads me to deny that a constitution is a character of law.  A constitution is an instrument of organization; it is not an instrument of rules.  And perhaps the American Constitution tries too much to be law, and ought to be understood merely as principles of organization rather than principles of conduct. 
BORK: In effect, they should have stopped with the first three Articles defining the Congress, the presidency, and courts.  Stopped and not continued.  
HAYEK: You know, I probably mentioned in my book the funny story of German legal philosophy in the last century.  When they had elaborated what I think is a very fine definition of what law--as they called it, "law in the material sense"--meant, suddenly somebody pointed out that they excluded the constitutional law from law.  It so shocked them that they abandoned the whole thing. 
BORK: Well, yes, it would be possible to have a constitution which is merely organizational, and which, as you say-- 
HAYEK: --which, in limiting the powers of government and legislation to coercion only according to formal rules, would delimit power, not lay down any rules of law.  We would just say that people had no other power than that. 
BORK: Dr. Hayek, I think you just laid down a rule of law with that. 
HAYEK: Well it depends on whether you call this a rule of law.  It's a rule of organization determining what powers particular people have. 
Dock windowTable of Contents
Intellectuals
Scientists
Sociology
Generality of laws
Generality of progressive taxation
Role of judges
Legislation by judges
Marxist theory of prices and value
Property, security and freedom
Regulations on property
Social justice
Evolution of societies
Freedom in an evolving society
General rules of justice
Uncertainty and the law
Generality of laws
Importance of a written constitution
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