When jurors disregard their instructions, are they promoting liberty—or anarchy?
Over at Crooked Timber, Corey Robin has been criticizing Friedrich Hayek for supporting Chilean dictator Augusto Pinochet. I don’t know much about the Hayek-Pinochet connection, nor to be honest have I read all the way through Robin’s various posts on the subject. Some significant libertarians, such as Mario Rizzo, have criticized Hayek for his mistake in this connection.
But a review of Robin’s description of Hayek’s academic writing on the subject of emergencies does not provide much credibility to Robin. He writes:
Hayek complied with the dictator’s request. He had his secretary send a draft of what eventually became chapter 17—“A Model Constitution”—of the third volume of Law, Legislation and Liberty. That chapter includes a section on “Emergency Powers,” which defends temporary dictatorships when “the long-run preservation” of a free society is threatened. “Long run” is an elastic phrase, and by free society Hayek doesn’t mean liberal democracy. He has something more particular and peculiar in mind: “that the coercive powers of government are restricted to the enforcement of universal rules of just conduct, and cannot be used for the achievement of particular purposes.” That last phrase is doing a lot of the work here: Hayek believed, for example, that the effort to secure a specific distribution of wealth constituted the pursuit of a particular purpose. So the threats to a free society might not simply come from international or civil war. Nor must they be imminent. As other parts of the text make clear, those threats could just as likely come from creeping social democracy at home. If the visions of Gunnar Myrdal and John Kenneth Galbraith were realized, Hayek writes, it would produce “a wholly rigid economic structure which…only the force of some dictatorial power could break.”
Perhaps Robin has quite a bit more support for his conclusions elsewhere, but the evidence he is presenting here is weak and misleading.
In the section on Emergency Powers in Chapter 17, Hayek makes clear that the legislature should control the granting of emergency powers and should retain the power to restrict or eliminate them at any time. So the emergency powers are to be controlled by legislature, not by the executive.
Hayek also makes clear that the emergencies he has in mind are not due to “creeping social democracy at home.” Hayek writes “when an external enemy threatens, when rebellion or lawless violence has broken out, or a natural catastrophe requires quick action by whatever means can be secured, powers of compulsory organization, which normally nobody possesses, must be granted to somebody.”
Further, Hayek recognizes the dangers from emergency powers, writing that “emergencies have always been the pretext on which the safeguards of individual liberty have been eroded.”
It may very well be that Hayek supported Pinochet and that that was a mistake. But his writings on the subject in Law, Legislation, and Liberty do not provide support for Pinochet’s coup or his actions. They are about another situation – about what an ideal constitution ought to contain and how that constitution would allow the legislature to give emergency powers to the executive.