Law, Legislation, and Liberty: Hayek’s enduring contribution to political sanity

Green Libertarianism, Hayek Studies

What is “legislation”, and do we really need more of it?

Five maxims for state legislators

I was hoping to give some advice to state legislators, who have been fed a toxic brew of corporate lies and propaganda by an organization called ALEC since the 1980’s. These are some of the same people I knew as Young Republicans. I didn’t like them, then, and needless to say, having more wealth and power has not improved the quality of their leadership and “model legislation. ” So, here is the “anti-ALEC”:

1. Even if you run as a Republican or Democrat, do NOT join or participate in your local party organization. You don’t have to. You don’t even have to join your party caucus in the legislature. Call yourself a public servant, and that’s it.

2. As soon as you have been elected, declare yourself free of party influence, and instead, form a local coucil of people from your district who voted for you, and who are known to you as being honest and public-spirited.

3. Learn some basic economics. This is easier said than done. If you’re a “liberal”, you’ll end up thinking that Keynes was God, and that perpetual deficit spending is the only way to prosperity. If you’re a conservative or otherwise “free market,” you’ll be told that welfare is evil, corporate criminals are your only friends, and the only people responsible for “creating jobs” and “balancing the budget”- unless you happen to live in a military town, in which case you’ll be told that the more money spent on weapons and killing people, the better-off we’ll all be.

4. Military people tend to see everything in military terms. They can’t conceive of a society which isn’t dominated by military discipline and “order.” They can’t conceive of a world without “enemies”, and the duty of a soldier is to kill anyone the President and Congress designate as “enemies.”

Congress has abdicated its responsibility, over and over again, to maintain cordial relations with other nations in the world. The President and the “secret government” behind him is totally subservient to military lobbies and “strategic thinking” based on “Mutually Assured Destruction” and “Full Spectrum Dominance”.  And it’s like pro-sports. It’s all about “us vs. them” and maximizing profits. Legislators must take back their constitutional authority in this respect, and refuse to allow state troops (the National Guard) being deployed on corporate missions to loot and destroy other countries overseas. Several states have alreay done this, and there is wide public support for it.

5. Simple sanity. This is another standard which only a few understand, and many misuse or mis-represent. For example, you don’t give psychoactive drugs to school children. If they need drugs, they shouldn’t be in school, and the schools should certainly have nothing to do with cooperating in such a program.

Public Schools and Universities – the importance of choice and moral values

Any group of parents, for any reasons, should be free to educate their own children in their own way,  with the same taxpayer support which the large prison-schools receive. We already reimburse local school districts according to attendance, so we can just as well pay alternative schools for the students who attend them. Whatever “regulation”, testing, or other standards are needed may be applied, to make sure that they are real schools or other learning places, and real learning is happening, with the full participation of the parents and students, themselves.

Although many might object, the decision to give taxpayer money to private, religious schools is “normal” and “reasonable.” Most other countries with large independent school systems also support religious schools, and deciding what are “real religions” and what are merely “cults” is difficult. The large, “consolidated” public schools, although they sometimes work well, only do so if they have the full support of the parents and local communities. In today’s fractious climate of corporate gang warfare and suppression of any and all free inquiry by authoritarians of all stripes, a bureaucratic, centralized, rule-bound public school bureaucracy is nothing less than the final stage of dictatorship.

Health Care and Social Safety Net

One thing that still puzzles me is pricing and other cost-accounting for government, taxpayer-provided services. Like health care, there is no provision for ordinary people purchasing what they need in an open market. It’s all about monopolies, licenses, corporate lobbying and extortion, med school bottlenecks, Federal programs and kick-backs, vast disparities in pay even among those who work in the same fields, etc. How did we ever get to this? Who can possibly believe that this kind of system is workable or good for us?

Basic primary care is very cheap – even if doctors are paid $200K a year. With nurse practitioners, who make somewhat less, but may be better primary care providers, it costs even less. We needn’t get into the thorny topic of medical politics and elitism – apparently, it’s always been that way. But we know that real health care (as opposed to the “health insurance” racket) is charitable, spiritual, and otherwise real medicine and “hospitality”, not some sort of protection racket which says: “Your money or your life.” “No insurance? No credit? No shoes? No service.” “There’s a hospice across the street. They’ll let you die, there.” “Abandon all hope, ye who enter here.”

And with this kind of “system”, we pay anwhere from 2-5 times more in the name of health care (most of which is simply stolen or extorted) than any other country, and we’re the least healthy in the whole OECD (the so-called “developed world”).


Background: Hayek and the Rule of Law

Friedrich Hayek, who visited my neighborhood for about 5 months in 1968, wrote a very good book at that time called “Law, Legislation, and Liberty,” published in three volumes by the University of Chicago Press. By some dialectical perversity, I actually sat in on and got credit for the initial presentation of that work in a UCLA philosophy seminar. They didn’t even put professor’s names on our transcripts in those days, so everyone here thinks I made it up – obviously I couldn’t have studied under such a famous conservative – or counter-revolutionary, to some of my Marxist friends.

There’s a lot more to it than that, and why Hayek should have been there, doing that, at that time. His title, which no one now remembers, was Visiting Flint Professor (of Law, Philosophy?) I don’t know who Flint was – I should google it, but UCLA was ranked 4th in the country, then, in Legal Philosophy, and there were a couple of professors who also taught in the Law School. I was an economics-philosophy major, and later tried being a grad student in philosophy, which only lasted two quarters, during which time I took psychedelics and became “enlightened”. Professor Yost and other senior faculty actually taught “expanded consciousness” with such texts as William James’ Varieties of Religious Experience as well as the more recent psychedelic literature, which by then inclulded Aldous Huxley, the Beats, etc. Woodstock Nation was being born at that very time, and of course LA and UCLA was one of the hubs of this New Consciousness.

The fact that I used psychedelics AFTER studying with Hayek totally negates his influence, right? The slate was wiped clean. But they don’t really change you that much – especially in an academic setting. We used to say that the only thing psychedelics do is bring out the “real you” – they liberate us from our family and cultural biases and presuppositions, although we quickly learn that most of what is old, is good. Experience matters. So, nothing much really changed except that we became more “old fashioned”, “folksy”, or otherwise “down home,” (and anti-science and technology, in many cases) and those of us closely tied to the land and a particular regional history soon returned home. “All the Buffalo Returning,” so to speak.

About the first thing I did when I returned to Montana in January, 1972, was request a catalog and application from the UM Law School. In part, this was due to my having been “profiled” (as a hippy), arrested, charged with spurious crimes, and otherwise fallen victim to an “establishment” which I had previously thought I was part of. I had been Vice President of the Bruin Young Republicans. I was a libertarian. I read all of Hayek’s books in anticipation of his coming to UCLA. And after these seminars, I really understood what “the Law” is, what is good about it, and what is wrong.

Briefly, Hayek’s view was that there are two kinds of law – Nomos and Thesis. One is “exogenous” or imposed from without by “authority”. The other is “endogenous” or internal, built-in, etc. We come hard-wired with moral principles, which can either be accentuated and reinforced by parental guidance and childhood experience, or negated by that later “training.”

The English Common Law is a good example of how people, over centuries, establish the rules and principles for civilized and harmonious living. This is the real Law. The stuff that legislators do is purely administrative – how to tax, provide public services, “provide for the common defense, promote the general welfare, and ensure the blessings of Liberty to ourselves and our posterity.”

The two kinds of law are very different, yet in the American system, they are totally confused and conflated. And “coalitions of organized interests” (Hayek’s expression) control the Congress and State Legislatures almost totally. So, what we needed (and still need) is a Constitution which recognizes these two kinds of law, and keeps them separate.

Hayek proposed a two-house Congress in which the House of Representatives would be the main unicameral “legislature” or Parliament, and another “Upper House” would be something like the British House of Lords, in which members would be elected for life (at the age of 40, and only by their own age-cohort – the other 40 year-olds in that year). This body would deal with broader issues and long-term consequences, creating overall policy and even acting (as the Lords does) as a Supreme Court determining the validity and appropriateness of whatever the main Parliament passes on.

I don’t know if Hayek ever studied the Iroquois Confederation and its system, which our Framers did. They also have a three-council government, with the “fire keepers” being a kind of buffer or referee between the other two (which could easily be geared to gender or other function – labor/capital, military/civilian, or some combination of these). I’ve long believed that we should either have a Women’s House and Men’s House, or else one man and one woman being elected from each district. For some strange reason, I’ve never met a feminst who supports that!

All of these should have been discussed in Montana’s Constitutional Convention of 1972, and I was prepared to go and participate, but not having been elected, and our neighbor Bob Woodmansey having been, I was out. I had been arrested a couple of times as a teen-ager in Great Falls. But I never thought of myself as “an enemy of society” or threat to anyone. Indeed, I was often bullied and punished in other ways for things I had no connection with at all.

By 1972, I was a political radical. But I didn’t consider myself either a Leftist or a Rightist. I was a Survivalist – something I probably learned from Boy Scouts and just growing up in a heavily militarized post WWII environment.

Still, being arrested after earning a college degree and having done some notable, worthwhile things, was a major wake-up call. Suddenly, I became very interested in the plight of the poor and minorities, as well as gays, atheists, and other traditionally persecuted minorities. What the psychedelics had done was to have removed my fears and inhibitions – “the thin veneer of civilization” which had prevented me from violating the delusions of the middle class. Being arrested and getting to hang out with murderers and mafia-types for awhile was worth a law degree in itself, and I didn’t need to go to school anymore.

Like most universities, UCLA had a large pool of acadmic hangers-on who were neither students nor teachers. They used the libraries, visited lectures, and otherwise “crashed” the system which they (correctly) believed, belong to the people. Sometimes they worked for the university (which I did for more than 2 years after I graduated). UC was tuition-free in those days, so there was no need to fight for “scholarhips.” Just having an interest and showing up was sufficient (of course, it was difficult to get admitted to student or graduate status, but not nearly so much so as it is, today. I had excellent test scores – they were APTITUDE tests, in those days, and no one studied for them).





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