Republicans against Hayek

I’ve been re-reading Philip Pettit’s book Republicanism after having recently read most of Hayek’s The Constitution of Liberty. What is striking about Pettit’s book is the seemingly wilful neglect of Hayek’s conceptualization of liberty. In fact, in his republican critique of negative liberty, Pettit neglects to address either, The Constitution of Liberty or Law, Legislation and Liberty. Given the substantive influence of Hayek in neo-liberal circles, this is peculiar indeed.  As a result, there are a number of significant problems with Pettit’s characterization of the ‘liberal’ tradition (associated with ‘negative liberty’) that weakens the distinctiveness of his republican alternative. Here are just a few observations I’ve made while going through both of their books again:

Non-domination versus Non-interference: 
Pettit’s entire conceptualization of republican liberty hinges on an allegedly clear distinction between conceptions of liberty as non-interference – associated with the ‘liberal’ tradition generally identified with Berlin, Constant, Paley and Bentham – and liberty as non-domination – associated with the Roman tradition of republicanism.  Liberty as non-interference envisions freedom as requiring an absence of government encroachment in the private sphere of the individual; it is, according to Hayek, freedom from restraint and freedom from constraint. According to Pettit, non-domination is defined as independence from the arbitrary power of others. Domination, therefore is defined as the capacity to interference on an arbitrary basis in certain choices that another individual is in a position to take (Pettit, p. 52). Interference, says Pettit, must be intentional; and it includes ‘coercion of the body, as in restraint or obstruction; coercion of the will, as in punishment or the threat of punishment; and, to add a category that was not salient in earlier centuries, manipulation: this is usually covert and may take the form of agenda-fixing, the deceptive or non-rational shaping of people’s beliefs or desires, or the rigging of the consequences of people’s actions (Pettit, p. 53).’ So domination is a form of arbitrary interference characterized by an intentional coercive act that prevents an agent from fulfilling a goal that is available to them. Now let us take a look at Hayek.
Hayek, a proponent of negative liberty – that is liberty as non-interference – also defines interference in terms of arbitrary power. Here is Hayek in his own words in the first chapter of The Constitution of Liberty:
‘The freedom of the free may have differed widely, but only in the degree of an independence which the slave did not possess at all. It meant always the possibility of a person’s acting according to his own decisions and plans, in contrast to the position of one who was irrevocably subject to the will of another, who by arbitrary decision could coerce him to act or not to act in specific ways. The time-honored phrase by which this freedom has often been described is therefore “independence of the arbitrary will of another (Hayek, p. 12).’
Like Pettit, Hayek characterizes interference as a form of coercion, and like Pettit, coercion requires conscious intention of the agent doing to coercing. ‘Coercion’, writes Hayek, ‘occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose. It is not that the coerced do not choose at all; if that were the case, we should not speak of “acting (Hayek, p. 117).”’ Freedom, therefore, requires one to be free from arbitrary interference, from being ‘subject to the will of another’ so that they may act according to their ‘own decisions and plans’.
Liberty against the Law: 
Pettit erroneously associates the ‘liberty as non-interference’ tradition with natural liberty as opposed to civil liberty (Pettit, p. 66). What this means is that, according to Pettit, liberal proponents of liberty as non-interference envision liberty being analogous to a natural state of freedom:  ‘Where freedom as non-domination represents the freedom of the city, freedom as non-interference tends to represent the freedom of the heath (Pettit, p. 67).’ The consequence of this is that liberty is conceptualized in antagonism to civil law. The obvious reference here is the statement made by Hobbes that liberty resides in the ‘silence of the laws’ (Cited in Pettit, p. 37). This enables Pettit to make the claim that while republicans make the distinction between non-interfering dominance and non-arbitrary interference, liberal proponents of negative liberty can only view all forms of interference as coercive and therefore infringements on the liberty of the individual.
Unfortunately for Pettit, it is not so simple; in fact, he seems to have set up a false dichotomy. Hayek, for instance, is clear that natural rights are quite simply rationalist nonsense; he rejects the idea of ‘natural liberty’ and is very critical of Bentham and the philosophical radicals, suggesting that they represent a significant break in the British liberal tradition, owing perhaps more to the French rationalist tradition than to the tradition of English empiricism. In fact, one of the reasons that Hayek rejects Benthamite liberalism is precisely because of Bentham’s insistence that ‘every law is an evil for every law is an infraction of liberty’ (cited in Hayek, 54). Indeed, Hayek is even critical of the tradition of laissez faire due to its association with the French rationalist tradition.  For Hayek, laws and institutions that channel norms and customs of action are important to the preservation of liberty. According to Hayek, the argument of the economic liberals of late eighteenth and early nineteenth century England was never ‘antistate as such, or anarchistic, which is the logical outcome of the rationalistic laissez faire doctrine; it was an argument that accounted both for the proper functions of the state and for the limits of state action (Hayek, p. 54).’ Far from characterizing law in antagonism to liberty, Hayek insists that liberty is enjoyed only under the law for a legal framework is necessary for liberty to be enjoyed.
Roman liberty: 
Pettit is insistent that liberty as non-domination is a Roman conception that is clearly distinguished from the liberal notion of liberty as non-interference. It begins with Cicero, Sallust, Livy and Plutarch; it is re-articulated by Machiavelli in the Discourses in the sixteenth century; Machiavelli’s ‘republicanism’ is translated into seventeenth century English political discourse where it inspires the likes of Harrington, Milton, Nedham and Sidney; Machiavellianism is carried over into the works of the early eighteenth century Commonwealthmen (Toland, Bolingbroke); and the Commonwealthmen serve as the foundation for the development of the American republican tradition.  Liberty as non-domination, on the other hand, begins with Hobbes, disappears for a century and turns up in the works of Jeremy Bentham, William Paley, James Mill, and Benjamin Constant.  
The problem is that Pettit’s narrative of negative and positive liberty conveniently neglects Hayek’s position in the history of negative liberty; and as a result, it neglects to account for the fact that Hayek lays claim to the same tradition that Pettit claims for republicanism.  In Hayek’s narrative, liberal notions of freedom, defined as the absence of arbitrary interference (unlike Berlin, Hayek never refers to it as ‘negative liberty’, at least not in The Constitution of Liberty), owe their origins to Roman notions of constitutionalism articulated most clearly by Cicero. Indeed, he lays claim to the same political theorists as does Pettit:  Cicero, Livy, Harrington, Milton, Montesquieu, and the Commonwealthmen, to name a few. In this sense, the Roman tradition forms the basis of a constitutionalism that is necessary to defend liberty.
Similarly, both authors claim Locke. In Hayek’s work, Locke looms large. He is the key transmitter of the Ciceronian tradition of the rule of law, constitutionalism and the separation of powers. Locke also figures in Pettit’s republican tradition despite the fact that Locke did not invoke the Roman tradition in his conceptualization of liberty; he did not base his opposition to absolutism in Roman terms, but rather in terms of the ancient constitution and the rights of private property. Indeed, I would argue that Locke is evidence that there is very little difference between the liberal tradition articulated by Hayek and the so-called ‘republican’ tradition articulated by Pettit. In fact, Hayek demonstrates a greater awareness of Greco-Roman political traditions than does Pettit, down to the point of emphasizing the fact – neglected by neo-Roman republicans who have not paid close enough attention to Constant’s writing on ancient liberty – that ancient Athenians did not have a conception of individual liberty. Where Pettit sees the history of liberty being divided between negative and positive liberty, Hayek sees a history of liberty torn between the competing traditions of English empiricism and French rationalism.
While I am no fan of Hayek, a key difference between him and Pettit – and it is a difference that I think makes Hayek’s position stronger than Pettit’s – is that Hayek’s narrative of the history of liberty takes into account the institutions of rule that are necessarily a part of that tradition of liberty. In other words, Hayek conceptualizes liberty as a form of political rule (or, to put it more accurately, a form of limitedpolitical rule). Liberty means nothing outside of the development of political constitutions that can guarantee that liberty. Pettit, on the other hand, conceptualizes liberty merely as a concept and disregards the historical development of political institutions and forms of rule. His narrative of the Roman tradition is an intellectual history that is devoid of any attention to the historical development of political institutions.  Republican liberty is therefore conceptualized in abstraction of the political institutions that are necessary for it to preside over the relations between rulers and ruled.  The irony here is that Pettit’s understanding of the Roman conception of libertas comes from the work of Chaim Wirszubski, whose 1950 classic Libertas:  as a Political Idea at Rome During the Late Republic and Early Principate identified the conception of liberty as the absence of slavery. But having identified the concept of Roman libertas, Wirszubski went on to argue that ‘the nature and extent of libertas are determined by the nature and form of the Roman constitution (Wirszubski, p. 5).’ Indeed, it is worthwhile heeding Pettit’s own warning regarding the coherence of the republican tradition:
‘While this book starts from a notion of freedom with a distinctive historical provenance, and while I have emphasized that aspect of things in this introduction, the book is not essentially tied to many controversial theses in the history of ideas. Perhaps republicanism is not deserving of the name of a tradition, for example, not being sufficiently coherent or connected to be treated in that way (Pettit, p. 10).
An important corrective to Pettit’s study is a recent book by Eric MacGilvray called The Invention of Market Freedom. MacGilvray takes Hayek much more seriously than does Pettit, and is required reading for anyone who wants to pursue a republican critique of the neo-liberal conception of freedom.

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