Shirley Robin Letwin on individuality and ideology

Law, Legislation and Liberty F. A. Hayek (Routledge and Kegan Paul £3.00)

Reason and Compassion Richard S. Peters (Routledge and Kegan Paul £1.80) Professor Hayek and Professor Peters are radicals who will outrage the Pharisees. It is equally orthodox nowadays to talk of men as driven like robots by urges, pressures, and forces; or to chatter mindlessly about mind over matter. What the Pharisees will not tolerate is serious reflection on rationality.

, Hayek and Peters have dared to do just this in plain and terse English. They write from different standpoints, Peters on moral experience, and Hayek on the character of a legal order. Yet they share a common conception of rationality that is far from fashionable. They take rationality to mean that how men conduct themselves depends on What they think, and that thinking involves seeing and choosing alternatives.

, The highest development of rationality implies for both Hayek and Peters the selfSufficiency to make a life for oneself in one's 0,Arn way, But they firmly reject any identification of individuality or autonomy with a Jumble of impulses or a readiness to make a vacuum of one's consciousness. They insist, on the contrary, that individuality comes of submitting to a civilised inheritance until one feels enough at home to make one's own place and innovations within it. But any attempt to reduce civilisation to a simple scheme that can be wholly mastered is considered absurd by both writers. Instead they distinguish between two kinds of understanding — one, of concrete particulars, the other of abstractions that offer ways of connecting particulars. They explore this distinction without Producing tidy dichotomies for blackboard Pundits.

Though civilised conduct, Hayek and Peters agree, involves making and observing general rules, a moral or legal order consists of more than its rules. For general rules do not specify What is appropriate to any particular situation. And if rules are made to do so by being turned into a code or catechism, they impose a. rigidity indifferent to constantly changing circumstances. This shortcoming of rules has lent plausibility to the champions of 'spontaneity' in education and to jurists who deny the value or reality of traditional rules of law. These views Hayek and Peters wish to combat.

Peters maintains that the alternatives in moral conduct are not just two, either a blind attachment to a code or tribal custom or else Plunging about" with ".criterionless choices." f!!ut there is, he grants, a real tension between the generalised demands of reason and the Particularised promptings of compassion." Though his use of 'reason' is sometimes confusing, it is clear that he means to establish a contrast between general prescriptions and particular judgments taking account of unique persons in concrete situations. But he goes on to argue that the tension between reason and compassion can be overcome by those who achieve a deeper understanding of the practice that the rules abridge.

Those who reach this stage of moral development have mastered the reasons for the rules and so can appreciate the particularity of any situation without losing sight of the general considerations that they accept as right. But expecting anyone to reach this higher stage without ever learning the rules, or supposing that children can "decide for themselves without acquiring the conceptual equipment to explore and weigh up the alternatives," which is the creed of 'progressive' schools, is a "fatuous type of fraud. ' Those who insist that children should learn only what interests them and run their own affairs ignore, Peters believes, the "crucial role which the stage of conventional morality plays in moral development." Everyone has to go through "good boy morality. The paradox of moral education to which Peters draws our attention is that it aims to develop a capacity to transcend a simple obedience to established rules but cannot do so without teaching such obedience. Peters resolves the paradox by distinguishing different manners of teaching. The current confusion in education, he argues, comes of regarding all instruction as indoctrination. But instruction becomes indoctrination only when, as in Russia, it is designed to deny and discourage the capacity of the individual to determine his own destiny. (The same might be said of apostles of freedom who assure us that we are victims of forces and drives.) Authority is not being used in a so-called 'authoritarian' manner when it serves to instruct pupils in how to imagine and appreciate alternatives. Nor is learning to be reasonable a matter of repressing the 'passions.' It is rather, according to Peters, acquiring a manner of thinking and conducting oneself that shuns being "obtuse, wilful, arbitrary, and pigheaded." The art of teaching is to know when pupils can manage more on their own, and this is hard to get right. But parents and teachers who dodge the difficulty by refusing to act as instructors stunt or destroy the self-sufficiency of children. In a short space, Peters makes a searching and persuasive case for the dependence of 'autonomy' on an apprenticeship designed to end in an abstract understanding of the relation between rules and a moral practice. But this is only part of his intricate yet unpretentious account of moral experience. One of the finer curiosities in the current orthodoxy is that those who treat children as grown-ups rush to embrace child-like regulation of adults. Not being one of that party, Hayek is concerned with distinguishing the kind of laws that enable men to live together and run their own lives as self-sufficient grown-ups, that is, as free men.

It will surprise some readers to find a leading critic of Marxism defending 'ideology.' Whereas in other books, Hayek has argued against making blueprints of an ideal society, here he attacks the opposite error of forswearing all general convictions about what is true and desirable and pretending to decide each issue ' on its merits.'

Those who oppose ideology for this reason, Hayek argues, misunderstand rationality as completely as the ' ideologues' themselves. They do not recognise that the preconceptions we hold, whether in the form of explicit principles or implicit, prejudices, about what is possible and right for governments to do will decide much that goes unnoticed when laws are made and interpreted. And what we do today affects what can be done tomorrow just as surely as we are limited by the measures taken yesterday.

Though this follows from Hayek's understanding of rationality, it gives a _precise meaning to the muzzy truth in the cant about our subjection to non-rational 'social forces.' These so-called necessities, Hayek explains, are simply the consequences of what our ancestors did without intending or foreseeing our present state of affairs. As what now exists is the result of human volition, it need not necessarily have been as it is. But nevertheless all that has been done cannot be undone at will. We therefore owe it to our heirs as much as to ourselves to remember that what we do here and now may matter less than our "opinions about permissible methods."

Hayek administers another salutary shock when he explains that the celebrated English gift for preserving liberty by 'muddling through' worked in the past not because Englishmen were indifferent to principles but because they had them so well in mind. Political practice was based on such a firm understanding of what measures were permissible that Englishmen "knew instinctively" what things "are not done" and could take particular decisions in a consistent manner without discussing their assumptions. The French were prone to talk so much and make a mess of things just because they lacked such "instinctive certainty" about fundamental ideas.

Hayek advocates neither planning a utopia nor what is generally misunderstood by laissez-faire. Letting each man do what he pleases without any framework of rules makes no more sense to him than identifying moral conduct with a surrender to whim does to Peters. Laissez-faire, Hayek points out, is as meaningless as 'free enterprise' and a 'market economy' without clearly defining the "free sphere of the individual."

Both the problem that concerns Hayek and his solution are analogous to Peters'. The central question for Hayek is how to maintain a social order that can accommodate the constantly changing variety of human choices. He answers that this can be done only by preserving an abstract order that does not dictate particulars. What is fundamental to Hayek's thinking is his conception of social order as the assured protection of certain expectations. Social order in this sense, he argues, must have existed before any legislation. Law in its first shape was judge-made law. It defined kinds of behaviour that "had to be repressed" in order to restore an order that had been disturbed. It maintained what Hayek calls a "spontaneous order" that created law rather than being created by law. This early judge-made law consisted entirely of "rules of just conduct." They were not designed to, and indeed could not, produce any specified results. They were not directions to do anything but set up a "system of abstract relationships" without defining its content. Such a system allows self-sufficient free men to pursue their own purposes in accordance with certain standing obligations. Because "rules of just conduct" create an overall abstract order, not any particular state of affairs, they produce order as if by an "invisible hand." This is the much maligned social phenomenon that economic theory teaches us to understand.

But wherever there is governmental machinery, there are also "rules of organisation." These are like the orders issued by a commander organising men for a campaign, designed to achieve particular results and to direct who should do what. A government is an "organisation," and the laws establishing courts and legal procedures, tax laws, administrative law, and constitutional law as well, are "rules of organisation."

Hayek does not deny the need for such "rules of organisation." But he does emphasise that they interfere with free choice in a very different manner from "rules of conduct." If the making of rules of organisation is governed by rules of just conduct, if the former are not permitted to absorb the latter, then freedom can remain. But it is endangered once the distinction between these two kinds of 'law' is lost or blurred as it now has been.

Most of the laws produced by modern legislatures consist of rules of organisation, which Hayek considers to be "public law."

Those who regard public law as serving the general welfare and private law as protecting selfish interests, Hayek declares, invert the truth. "Public law" directs the activities of the government so as to protect and serve special interests such as higher incomes for farmers or better housing for city dwellers. "Private law," under which Hayek puts criminal law, serves the only undisputed common purpose of maintaining an overall order.

As lawyers have become increasingly preoccupied with public law, they have spread an understanding of law that leaves no room and shows no respect for "rules of just conduct." What's more, legislatures are now thought to be "running the country." They are therefore expected to arrange everything satisfactorily just as a manager who runs a factory should do. Thus there is a growing acceptance of the view expressed, for instance, by Crossland, that the duty of the politician is to remove all sources of discontent.

Once this becomes the aim of legislation, all particular activities have to be dealt with in a manner that no general rules can do. But as dissatisfaction can never be completely removed from human life, the result of such efforts will be a social order in which every new discontent produces a new regulation.

Then stable expectations become impossible, and the private citizen entirely an object to be administered.

Thus Hayek warns us that while we are myopically pursuing immediate benefits, con fused ideas about our methods are shaping a social order in which grown men are governed like children. These are but a few of the leading points in a book unusually rich in original and provocative ideas.

Apart from any of the particular arguments, what makes both these books so important and refreshing is the fundamental outlook that inspires them. It is a rare diffidence with no taint of self-indulgence. Both Hayek and' Peters accept that there are questions that cannot be answered and purposes that cannot be achieved. Both have a strong sense for what Peters describes in his revealing chapter on the "religious dimension of a rational morality" as "the limits to the assertion of will and the fixing of things." Yet neither do they excuse themselves or us from an obligation to think carefully.