On Smith and Hume and the origins of the Rule of Law in Hayek (and Knight)
Today’s post overlaps a bit with the start of a relatively short, new paper, “Of Corruption and Clientelism in Montesquieu, Hume, and Adam Smith in the rule of Law,” that I have drafted (here). And that paper subtly revises and develops views I have discussed on this Substack (recall here; and here). And much to my own surprise, I also end up disagreeing more than I expected with William Selinger’s excellent (2019) Parliamentarism: From Burke to Weber (CUP). (I usually only praise this book in these Digressions!)
It’s fair to say that in recent times, David Hume and Adam Smith have been widely regarded, by friends and enemies alike, as champions of the rule of law and (perhaps this is the same side of the coin) critics of rent-seeking. So, for example, in The Constitution of Liberty, in a section titled, “The Origins of the Rule of Law,” Hayek writes, “The most influential among them was David Hume, who in his works again and again stressed the crucial points and of whom it has justly been said that for him the real meaning of the history of England was the evolution from a "government of will to a government of law."” (p. 172) Subsequently, Hayek goes on to attribute the position to Adam Smith: “Later in the century these ideals are more often taken for granted than explicitly stated, and the modern reader has to infer them when he wants to understand what men like Adam Smith and his contemporaries meant by "liberty." Only occasionally, as in Blackstone's Commentaries, do we find endeavors to elaborate particular points, such as the significance of the independence of the judges and of the separation of powers, or to clarify the meaning of "law" by its definition as "a rule, not a transient sudden order from a superior or concerning a particular person; but something permanent, uniform and universal."” (173)
In discussing this very material in "Laissez faire: pro and con" (Journal of Political Economy (1967)), F.H. Knight is rather critical of Hayek. To be precise, Knight agrees with Hayek’s characterization of the rule of law, but accuses him of minimizing the role of political democracy in it:
The idea that so-called neoliberals were monolithically antidemocratic cannot sustain scrutiny. Knight — the Godfather of Chicago economics and an advocate of government by discussion (see this fine paper by Ross Emmett) — is usually quite alert to anti-democratic tendencies of his peers.
Even so, while Knight is surely right in his diagnosis that Hayek is not especially warm to this democratic feature of the rule law (which Hayek usually tends to associate with the dangers emanating from Rousseau’s General Will), Knight overlooks that Hayek himself recognizes the very point at issue in a crucial passage:
But the ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority. (Constitution of Liberty, p 206; On the significance of this passage see Smith, Craig. Adam Smith's political philosophy: the invisible hand and spontaneous order. Routledge, 2006, p. 137.)
Notice that Hayek is also responding to Schmitt here. (Hayek explicitly singles out Schmitt in a discursive footnote attached to this chapter, see p. 485.) He grants Schmitt’s underlying empirical or conceptual point that he who decides on the exception is fundamentally sovereign. But echoing Dicey’s Lectures on the Relation between Law and Public Opinion (recall this post), who Hayek also quotes in the notes to this material (see p. 487), Hayek treats public opinion of — or commitment to a common ideal by — the community ultimately as a check on the power of the ultimate legislator in a democracy.
I have focused on Hayek here because that Hume and Smith are central to the origin and articulation of the rule of law strikes me as a view that originates with Hayek or at least given much wider currency by him. We do not find the close association between the rule of law and Hume or Smith in, for example, Dicey’s (1885) Lectures Introductory to the Study of the Law of the Constitution, which is the locus classicus for the modern interest in rule of law. This is especially notable because in it Dicey does treat Hume as rather important theorist for the role of opinion in securing any enduring rule (which he expands in chapter 1 of Lectures on the Relation between Law and Public Opinion). In fact, even in the earlier Road to Serfdom, which strongly supports the rule of law, it is not tightly linked to Hume or Smith!
Anyway, let me stop there. Hayek is surely right that Hume and Smith were true friends of the rule of law and not men, but if you read my draft paper you’ll see that they also thought that to secure its benefits we also need politicians skilled in an art of government that involves manipulating a spoils system to its proper ends.