Mirror of Justice

My colleague Nick Farris here at the University of St. Thomas School of Law is publishing an essay on the classical liberal thought of F.A. Hayek, which if anything has increasing permanence in understanding our modern world.  I post here a summary that contrasts classical liberalism with the modernism of Judge Posner in a context that will be familiar to many readers of the Mirror of Justice.  The whole essay may be found here.  I commend it to your attention.

The contrast between the worldviews becomes even more evident when applied to overtly noneconomic subjects. Posner’s willingness to reshape orders along rational lines doesn’t stop at the law of contract or torts; it extends far beyond them into as issues as diverse as the role of judges in shaping social institutions. In the Posnerian worldview, the judge should strive in the service “of helping society to cope with its problems, and therefore the rules that judges create as a byproduct of adjudication should be appraised by what works criteria rather than by their correspondence to truth, natural law, or some other abstract validating principle.” 157 In assessing what works, Posner claims that this pragmatism has “no inherent political valence.” 158 If this sounds very similar to Friedman’s general approach on economics as a science generally, it should. The same claim of being committed to “what works” (as a scientific, normative-free approach) instead of ideology has been a common trope in politics since at least the time of Napoleon Bonaparte. 159 It exists because it is an attractive proposition, it makes one seem open-minded, flexible and ready to solve any problem without the always encroaching dead hand of the past. Even conceding that we can accurately determine “what works” (which I think is extremely dubious based on the track record of social sciences), the exercise is fundamentally value-laden. As acknowledged by the classical, left-of-center pragmatists, pragmatism operates on the principle that their critical investigations are infused with value commitments and no neutral determination is possible. 160 Critics have often criticized this aspect of Posner’s work, claiming that his work has an obvious and overwhelming political valence. 161

Posner’s general pragmatic philosophical approach to judging was perfectly illustrated during the oral arguments in the 7th Circuit case about gay marriage in Indiana and Wisconsin. 164 The state representative attempted to make some argument based on tradition and the long-standing nature of the institution. Posner responded “How can tradition be the reason? We’ve been doing a stupid thing for a long time certainly wouldn’t be enough of a justification to uphold a law or practice”. 165 When the attorney responded with a Burkean argument, Posner emotionally responded “That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference?” 166 . These sorts of statements are inherently a rational constructivist one, the proposition that knowledge arises principally from individual intellectual effort. 167 And more than that, they elevate the judge to position to settle deeply complex, subjective and value-laden issues with a manner more fitting a simple math problem. 

From a Hayekian prospective, this is the wrong avenue to go down. In fact, it’s a dead end. Two major underlying, unstated premises seem to exist in Posner’s argument: (1) that we are only dealing with a constructed order that can be better designed; (2) and if a law cannot be justified in a purely logical positivist sense then it is arbitrary, idiotic and ultimately unconstitutional. If we actually attempted to assess social institutions on this basis, the vast majority would fail this test. This is because knowledge primarily arises from human activity rather than abstract reason. In Hayekian terms, the vast majority of institutions are not rationally and consciously constructed. Rather they are the result of haphazard evolutionary processes that produce generally improved, if uneven progress. The reason that these evolutionary processes produce better utilitarian outcomes is because they function more like competitive sociological markets than constructed and planned orders. Despite haphazard and uneven progress, these spontaneous orders are anything but random; rather, moral orders evolve through group selection, groups that behave in these ways are more likely to survive and thrive over long time periods.168 Ultimately a society ends up with sets of cultural practices that are from a scientific prospective “not true,” in that they are neither verifiable nor testable, 169 but they nevertheless serve the important and useful utilitarian functions in allowing human civilization to thrive.170 And most moral orders, along with the religious traditions that influence them, despite being scientifically untrue (and likely completely failing any sort of “rational basis” test if assessed as purely as a matter of abstract logic) have provided civilization with profoundly powerful and useful methods for living. 171