The Fall issue of Independent Review has my response to Timothy Sandefur’s essay “Some Problems With Spontaneous Order,” in its summer, 2009 issue.
Unfortunately neither my critique nor Sandefur’s response are available yet without buying the journal, though that will change in 6 months. (But Independent Review can use the business so I hope you buy it if you do not subscribe!) In a word, my argument is that Sandefur completely misses the importance of Hayek’s distinction between a spontaneous order and an instrumental organization. Here I want to go through his response in some care.
Sandefur argues that “if you scratch a spontaneous order you find constructivism and vice versa.” As an example he points to the constitution, which was constructed. I claim it establishes neutral procedures for the democratic process, Sandefur argues this “is not true” because it “is infused with norms.” Further it contains restrictions on concrete policy, such as no ex post facto laws. The Constitution is “not the result of a spontaneous order.”
He concludes his rebuttal arguing that criticizing “constructivist rationalism” because it interferes with a spontaneous order is absurd because “evolution goes on” regardless. Virtually any outcome is a “spontaneous order” so a “spontaneous order [provides] no guidance to our actions” which are teleological even when the order is not.
Let’s return to his example of the US Constitution, because his misunderstandings there are the key to his misunderstandings elsewhere.
A spontaneous order can be “constructed” in the sense that its operating principles are rationally intelligible, and if they are institutionalized within a society whose culture is amenable to the values involved in the procedural rules, it will arise. The rules of any social spontaneous order – the market, science, democracy, the internet – involve the basic liberal moral principle of equality of status. In addition, to work effectively the rules must facilitate mutually acceptable terms of cooperation, most obviously in terms of contract among equals within the market. As such, certain values are in fact intrinsic to spontaneous orders, although they do not help us determine our specific goals: equality and voluntary cooperation. Sandefur mistakes values as always teleological.
In the constitution in addition there is another value: public values (not public goods in the economic sense). It is a means by which a society of equals can devise a framework of rules whereby matters of public concern can be addressed in such a way as all believe, on balance they will gain. Again, the rules are neutral as to what those values are in detail, but they must be acceptable to an institutional framework that, as Madison argued, combines ability to act effectively with difficulty of being captured by some group to oppress another group. The Federalist Papers outline his argument in detail, but to paraphrase, majority rule exists for day to day decisions, but they must be simultaneous majorities by representatives elected by different means: House and Senate. If the President, elected differently, vetoes, a special majority of both houses can override.
Amendments require special majorities because they were agreed upon initially by a special majority and set up the procedural rules by which everyone felt on balance safe. The constitution is the application of Madison’s principle of a democratic republic to the cultural realities of the 13 states. It only really came a cropper because some states moved over time farther from the liberal ideal of equality among citizens who are sovereign over the government. That is the American South, which with Calhoun abandoned Locke for a Hobbesian approach based on power, and others in the slavocracy ho often based their new society on slavery and a certain view of Christianity.
In other words, the Constitution worked where the society’s customs and mores were basically liberal, and had serious problems where it was not. None of the rules and values within the Constitution were teleological, defining public values. They were all procedural. Even more fundamentally, the Constitution’s principles make sense if the key value underlying it is consensus. There was and would continue to be today a belief that requiring consensus as a practical matter would give small minorities veto power over everyone else. But the Constitution is not a pure majority rule document and cannot be understood in those terms. Political theorists who are majority rule democrats say it is anti-democratic. But as I argued in Persuasion, Power and Polity, there is no coherent theory of majoritarian democracy. Only a spontaneous order model makes sense empirically and logically. Such a model puts values of persuasion and cooperation over rule, and sees majority rule as of practical utility only.
A spontaneous order is an evolutionary process, but not all evolutionary processes are spontaneous orders in Hayek’s sense of the term. However evolutionary processes undergirded by liberal values of equality of status and freedom of cooperation are spontaneous orders of this sort. It is this linkage of spontaneous order with Lockean and similar liberal values that Sandefur misses, and therefor confuses with social evolutionary processes in general. I urge Sandefur or anyone else persuaded by his argument to read the blog post on vocabulary involving emergent order here, and if they have difficulties to please provide critiques.