Hayek on Customs, Laws, and Ethics

Friedrich Hayek is often read as having proven that “rationalism” about ethics is impossible. If by “rationalist ethics” we mean the explanation of all the norms and laws that we actually do hold, then Hayek’s argument succeeds. If, on the other hand, by “ethics” we mean the project Singer endorses, and I also endorse—using reason to figure out from scratch which norms and laws we ought to have—then Hayek’s argument fails. It is not clear to me, however, that Hayek can plausibly be read as attempting this second task. This means that, if nothing else, invoking Hayek against the latter understanding of rationalist ethics is a poor rebuttal.

There is a bundle of distinct claims Hayek makes about ethics, law, and the relationship between the two. Let’s take a minute to explore some of those claims. I’m going to spare you any extensive quotations and stick mostly to paraphrasing Hayek, at the risk of accidentally misrepresenting his views.

Hayek claims that the laws and norms we actually do have are not the result of a rational, goal-​directed process, but instead are a result of those norms and laws allowing our society to succeed in maintaining and propagating those norms and laws.

Hayek is perfectly correct. Note that so far, his position is consistent with Singer’s. Singer, arguing that our ethical intuitions are likely caused by factors outside of moral truth, points out that biological evolution has likely influenced our moral instincts. Hayek, by pointing out another mechanism for explaining the norms we do possess, does much to strengthen Singer’s case.

Hayek says that the human mind is not capable of constructing a top-​down theory that explains why human societies have the norms that they do; we cannot offer a rationalist account of the norms we do have. This is because, much like individual economic actors cannot be fully conscious of their relationship to the larger economic system, neither can individuals fully comprehend the way their decisions relate to the production, propagation, and evolution of society’s norms and laws.

Hayek points out that individuals are embedded in a culture resulting from spontaneous order. Well, so what? If Singer is right, this isn’t what rationalist ethics should be attempting to do in the first place.

Hayek claims that reason doesn’t give us a tool to make judgments about the worth of a given norm or law except with reference to the cultural context of that norm or law.

Here, I think Hayek has made a mistake, at least prima facie. From the claim that reason cannot explain the norms we do have, it does not follow that reason cannot tell us which norms are the morally correct ones. A generous reading of Hayek has to treat his discussion of improving laws and norms as not per se meaning moral improvements, although moral improvements may come about as secondary effects.

In some places, it seems like Hayek acknowledges that his theory of laws and norms is not a normative theory. In other places, it seems like he is trying to arrive at normativity through various back doors.

It should be obvious that the fact that a norm or law helps a society “succeed” tells us nothing about whether that norm or law is morally “good.” Of course not! But Hayek’s position is more nuanced. For one thing, Hayek is doubtful that humans can discover what “good” laws and norms would be. In The Fatal Conceit, he writes:

However, when Hayek talks about a “universally valid system of ethics,” I take him to mean both an ethical theory that is trying to “predict,” at least broadly, the norms we do have, and a system that offers judgment about a given norm without reference to the cultural and legal context in which that norm is embedded. Hayek seems to assume that the former set of theories is identical to the latter. In doing so, he assumes further that all rationalist systems are attempting to predict or explain prevailing norms. Hayek is wrong to assume that. You can, and I argue, should have a rationalist ethical system that isn’t trying to explain the norms we do have. Hayek doesn’t say anything about that type of ethics, as far as I can tell.

Instead of comparing evolved rules to rationalist ethical theories, Hayek wants us to ameliorate individual rules in light of the functioning of the system as a whole. In Law, Legislation, and Liberty, he writes:

What would be the alternative to making only local, discrete changes?

Hayek claims that if we tried to rip out, root, and branch, the evolved norms we have, and replace them at once with rationally “constructed” norms that we deem preferable, we must be prepared for potentially disastrous consequences.

This means that if we have a theory of ethics where bad consequences have moral weight—utilitarianism, for example—we need to consider the fact that at least some of the evolved norms and laws we have are not just empty ceremonies but load-​bearing structures, and messing with them is therefore risky. Consequently, it might be wrong under certain ethical systems to change a rule or norm, or to change too many of them at once. Hayek puts this point rather well in The Fatal Conceit:

What I conclude from my reading of Hayek, which I hasten to admit is still somewhat inchoate, is that Hayek has not, as is too often contended, shut the door on rationalist ethics. On the contrary, Hayek’s theory needs to reference a background theory of ethics—likely a rationalist ethics—if his theory is to have any normative force. “Society might fall apart, leading to a lot of suffering compared to the status quo, if you do X” is a positive claim, not a normative one. You would need a background moral theory that says, “It is wrong to perform actions that lead to increased suffering” or something similar in order to draw any normative conclusions.

On the other hand, Hayek’s positive analysis provides a lot of valuable input to discussions about whether and how rationalist reforms of social norms should be undertaken.

In my next two essays, I’m going to discuss those conclusions more broadly. First, how can we be good Hayekian libertarians in light of the limited scope of what Hayek says about ethics? After that, how can we be good rationalist libertarians in light of what Hayek tells us about the limits of reason?