Murray N. Rothbard vs. the Philosophers: Unpublished Writings on Hayek

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U NPUBLISHED W RITINGS ON H AYEK , M ISES , S TRAUSS , AND P OLANYI M URRAY N. R OTHBARD VS . THE P HILOSOPHERS LvMI E DITED WITH AN I NTRODUCTION AND N OTES BY R OBERTA A.

M ODUGNO LUDWIG VON MISES U NPUBLISHED W RITINGS ON H AYEK , M ISES , S TRAUSS , AND P OLANYI M URRAY N. R OTHBARD VS . THE P HILOSOPHERS © 2009 by the Ludwig von Mises Institute and published under the Creative Commons Attribution License 3.0.

http://creativecommons.org/licenses/by/3.0/ Ludwig von Mises Institute 518 West Magnolia Avenue Auburn, Alabama 36832 mises.org ISBN: 978-1-933550-46-6 P REFACE BY D AVID G ORDON . . .

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.vii I NTRODUCTION : L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD . .

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.1 Rothbard 9s Unpublished Writings . . .

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.3 Rothbard on Leo Strauss . . .

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. . . . .6 Criticism of the Subjectivism of Values . . . . . . . . . . . . . .15 Criticism of Hayek: Historical Rights and Natural Rights . . . . . . . . . . . . . . . . . . . . . . . . .23 Criticism of the Concept of Coercion in Hayek . . . . . . . . .38 R EVIEWS AND C OMMENTS BY M URRAY N EWTON R OTHBARD . . . .47 1. Letter on Rugged Individualism by George B. Cutten . . . . . . . . . . . . . . . . . . . . . . . .49 2. Confidential Memo to the Volker Fund on F.A. Hayek 9s Constitution of Liberty . . . . . . . . . . . . .61 3. Letter on The Constitution of Liberty by F.A. von Hayek . . . . . . . . . . . . . . . . . . . . . . . . . .71 4. Review of Lionel Robbins, The Great Depression . . . . . 79 5. Letter on The Eighteenth-Century Commonwealthman by Caroline Robbins . . . . . . . . . . . . . . . . . . . . . . . . .82 6. Letter on What is Political Philosophy? by Leo Strauss . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 7. Letter on Thoughts on Machiavelli by Leo Strauss . . . .96 8. Letter on On Tyranny by Leo Strauss . . . . . . . . . . . .102 9. The Symposium on Relativism: A Critique . . . . . . . . .104 10. On Polanyi 9s The Great Transformation . . . . . . . . . . 121 v Contents C HRONOLOGY OF THE L IFE AND W ORKS OF M URRAY N EWTON R OTHBARD . . . . . . . . . . . . . . . . . . .141 R EFERENCES AND B IBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . .147 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151 Selected Writings by Murray N. Rothbard . . . . . . . . . .151 Writings on Murray N. Rothbard . . . . . . . . . . . . . . . .152 Writings of a General Nature . . . . . . . . . . . . . . . . . . .153 I NDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157 M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS vi ON H AYEK , M ISES , S TRAUSS , AND P OLYANI R OBERTA M ODUGNO HAS IN HER scholarly career made a habit of cgetting there first. d She wrote the first book in any lan- guage on the thought of Murray Rothbard, Murray N. Roth- bard e l 9anarco-capitalismo americano , published by Rubbet- tino in 1998, and she also is the author of the first Italian book on Mary Wollstonecraft 9s political thought. In the pres- ent book, she has once more led the way. Murray Rothbard was a prolific scholar, as a mere glance at his bibliography will disclose. But his published books and articles, even including those that have appeared posthu- mously, do not exhaust his scholarly contributions. When he died in January 1995, he left his papers and correspondence to the Mises Institute. The most important of these papers, from the point of view of libertarian scholarship, consist of reports he wrote when he worked for the William Volker Fund. In these reports, Rothbard commented on a wide vari- ety of subjects, including economics, history, political theory, philosophy, sociology, and anthropology. Like Terence, Roth- bard could say, cNothing human is alien to me. d These reports often provide more details of his views on particular points than are available from his published books; in some cases, these reports raise altogether new issues. It is Roberta Modugno 9s great merit to have been the first scholar to make some of this material available to the public. After she gained access to the unpublished papers, she pub- lished (also with Rubbettino) a selection of them, translated vii P REFACE M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS viii ON H AYEK , M ISES , S TRAUSS , AND P OLYANI into Italian, in 2005. The present book is the first publica- tion of these papers in their original English. Besides the papers, the book includes Professor Mod- ugno 9s scholarly introduction, which stresses Rothbard 9s relations to the thought of Leo Strauss and Friedrich von Hayek. In addition, she has provided detailed explanatory notes to the selections. Even experienced students of Rothbard will learn much from this book. His criticism of social Darwinism in the first selection is of classic stature; and he makes a searching crit- icism of Hayek on the rule of law. In his discussion of Car- oline Robbins, his amazing depth of scholarship is present in full force. Although Robbins had just completed the first comprehensive study of British classical liberalism in the eighteenth century, Rothbard was able to correct and add to her findings. The nine selections published here form only a small sample of the unpublished papers; future books will make many more of them available. But Roberta Modugno was there first. D AVID G ORDON Ludwig von Mises Institute I NTRODUCTION L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD R OTHBARD 9 S U NPUBLISHED W RITINGS I N 1952, M URRAY R OTHBARD received a grant from the William Volker Fund to write a book on Austrian economics, based on the ideas of Ludwig von Mises, to be used as a text- book for university economics courses. That book became Man, Economy, and State , published some ten years later. It contained an in-depth investigation of Austrian economics and its policy implications, and it went far beyond the standard university textbook. In the same year of 1952, Rothbard, now aged 26, began to work for the Volker Fund as a senior ana- lyst, and over a period of about ten years he reviewed books, journals, articles, and manuscripts in search of intellectual allies with libertarian leanings. Rothbard enjoyed this kind of work as it offered him the opportunity to read, extremely rapidly, countless books by many different authors. This was a period of hard work, but it was also a time of intellectual development and growth. The Volker Fund was founded in 1932 by a Kansas City entrepreneur, William Volker. Later, Volker 9s nephew, Harold Luhnow, was responsible for the fund 9s consolidation and development in the 1940s and 850s. This foundation played a crucial role in supporting and disseminating the work of Hayek, who was writing The Constitution of Liberty , and the work of many other libertarian scholars both at the Univer- sity of Chicago and elsewhere. It organized conferences and 3 M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 4 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI seminars at prestigious universities and was one of the most influential classical-liberal foundations in the United States. Since the end of the 1940s, Rothbard had also been working part time as a consultant to the National Book Foundation (a subsidiary of the Volker Fund) and for the Foundation for Economic Education. The Foundation for Economic Education (FEE) was founded by Leonard E. Read in 1946, with headquarters in a mansion on the banks of the Hudson River in New York. Its aim was to dissemi- nate libertarian ideas, especially in the area of economics. Rothbard first made contact with this foundation when he requested a copy of a pamphlet against rent control, Roofs or Ceilings? written by Milton Friedman and George Stigler. The young Rothbard had attended Stigler 9s economics lec- tures at Columbia University. The reviews and comments published in the following pages date from the years when Rothbard was working for the Volker Fund, and the two classical-liberal foundations, National Book Foundation, and FEE. Given their nature, they comprise a set of writings that are very heterogeneous, composed in a style that is sometimes informal and marked by the biting irony that was to become a typical feature of Rothbard 9s prose. In them, one can find some of the major themes that characterize the thought of the author. These writings are published here for the first time, in their original English, and the decision to publish them was made for various reasons. Some pieces clarify the author 9s position in relation to intellectuals such as Leo Strauss and Karl Polanyi on subjects such as progress, technology, and on what today is termed cglobalization. d Others, such as the two sets of comments on Hayek 9s Constitution of Liberty , contain not only the criticisms 4later found in Ethics of Lib- erty 4of the Hayekian concept of ccoercion, d but also some interesting criticisms of the rule of law as a guarantee of lib- erty and of the absence of references to natural law in Hayek 9s work. Furthermore, these writings help shed light on the genesis of Rothbard 9s thought. His criticisms of Hayek 9s and Mises 9s ideas date back to 1958 and 1960 1 Murray N. Rothbard, cReview of Lionel Robbins, The Great Depression d (London: Macmillan, 1937); see p. 79 in this volume. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 5 respectively; and it is actually here that, for the first time, Rothbard thoroughly and extensively expresses his dissent from the ideas of the two great masters. The criticisms of Mises are the same as those contained in Ethics of Liberty , but the comments on the Symposium on Relativism of 1960 mark the first time that Rothbard distances himself from some Misesian positions. This is an interesting set of docu- ments showing how the main lines of Rothbardian thought were already firmly in place between the late 1950s and the early 1960s as regards subjects such as the possibility of absolute ethical values based on natural law, the nonaggres- sion axiom, and the criticism of the state. But that is not all. As early as 1948, we find in the com- ments made by the twenty-two-year-old Rothbard on Cut- ten 9s paper, cRugged Individualism, d arguments that demol- ish the aberrant theories of social Darwinism, revealing that the young author 9s individualism was already mature before he met Mises. Allusions to the immorality of the state 9s ini- tiatives for social welfare and criticisms of the state were a sign that the development of Rothbard 9s thought already included the idea of the state as aggressor. Alongside these writings, there are very positive com- ments on Lionel Robbins 9s The Great Depression and on Caroline Robbins 9s The Eighteenth-Century Commonwealth- man . The volume by Lionel Robbins is presented as cone of the great economic works of our time. d 1 Robbins attributes responsibility for the Wall Street Crash of 1929 to the inter- ventionist economic policies that caused the expansion of credit in the preceding years. After this, recovery was slow because of policies that interfered with the capacity of the market to correct the structure of production that had been damaged by the preceding expansion of credit, thereby increasing the length and the severity of the Depression. Rothbard also greatly appreciates Caroline Robbins 9s monumental work on the eighteenth-century republicans. He considers the principal merit of her work to be that it fills the gap between the Glorious Revolution of 1688 and the liberal and republican ideas that emerged at the end of the eighteenth century, thus rediscovering a whole series of liberal, radical, dissident, and republican thinkers. Person- alities like Thomas Gordon and John Trenchard 4the authors of the famous Cato 9s Letters 4Thomas Hollis, John Burgh, and Francis Hutcheson are restored to historiogra- phy, underlining their important role in preserving and developing the English liberal and libertarian tradition. R OTHBARD AND L EO S TRAUSS O NE OF THE BASIC themes of the writings presented here is the possibility of a rational foundation for ethical values. Another is Rothbard 9s constant reference to natural law and natural rights. Because of these themes, the writings on Strauss, although brief, are important. Rothbard is always critical of Leo Strauss but he agrees with him on the need for a rational basis for ethics and absolute values. These positions are seen both in the review of What is Political Philosophy? and in the comments on Strauss 9s paper for the Symposium on Relativism (organized by the Volker Fund in 1960). According to Rothbard, the great virtue of Strauss 9s work cis that he is on the forefront of the fight to restore and resurrect political philosophy from the interment given it by modern positivists and adherents of scientism 4in short, that he wants to restore values and political ethics to the study of politics. d However, Rothbard thinks that Strauss 9s work also contains an important flaw: M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 6 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI The great defect is that Strauss, while favoring what he considers to be the classical and Christ- ian concepts of natural law, is bitterly opposed to the seventeenth- and eighteenth-century concep- tions of Locke and the rationalists, particularly to their cabstract, d cdeductive d championing of the natural rights of the individual: liberty, property, etc. Strauss, in fact, has been the leading cham- pion, along with Russell Kirk and the Catholic scholars in America, of a recent trend in Locke historiography . . . to sunder completely the cbad, d individualist, natural-rights type natural law of the seventeenth and eighteenth centuries, from the cgood d classical-Christian type 4good, presum- ably, because it was so vague and so cprudential d that it offered very little chance to defend individ- ual liberty against the state. In this reading, Hobbes and Locke are the great villains in the alleged perversion of natural law. To my mind, this cperversion d was a healthy sharpening and development of the concept. My quarrel with Strauss, Kirk, et al., therefore, is not only valuational 4that they are anti-natural rights and liberty, and I am for them 4but also factual and historical: for they think that the Lockeans had an entirely different concept of nat- ural law, whereas I think that the difference 4 while clearly there 4was a sharpening develop- ment, rather than a perversion or a diametric opposite. 2 This is where Rothbard 9s criticism of the Straussian con- cept of modern natural law first appears. 3 Strauss argues L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 7 2 Murray N. Rothbard, cLetter on What is Political Philosophy? by Leo Strauss d; see p. 91 in this volume. 3 This theme comes up in later works. See, for example, Murray N. Rothbard, An Austrian Perspective on the History of Economic Thought, vol. 1, Economic Thought Before Adam Smith (Chel- tenham, U.K.: Eward Elgar, 1995), pp. 313 314, 339. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 8 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI that modern natural law is a degeneration of the classical natural law that is an expression of civic virtue. In Strauss 9s view, the individualism of the Lockean tradition, with its theory of property, breaks with the classical and Scholastic tradition and represents a decline from the values of the past, placing the individual and his rights at the center of the universe with consequences such as cthe solution of the political problem through economic means, d of which he dis- approves. 4 Strauss writes that Locke 9s teaching on property, and therewith his whole political philosophy, are revolutionary not only with regard to the biblical tradition but with regard to the philosophic tradition as well. Through the shift of emphasis from natural duties or obligations to natural rights, the individual, the ego, had become the center and origin of the moral world, since man 4as distinguished from man 9s end 4had become that center or origin. 5 Safeguarding the individual 9s right to property becomes an aim of the kind of politics that had ceased to draw inspi- ration from a natural end, wisdom, and virtue. Rothbard sees Strauss as an icon of conservatism, press- ing an invitation to return to the ancients, and as a critic of a modernity heralding the historicism and relativism that led to the impossibility of making judgments of binding value for the whole community. Affirming that values are subjec- tive and, above all, can change with the times would make it 4 Leo Strauss, What Is Political Philosophy? And Other Studies (Glencoe, Ill.: Free Press of Glencoe, 1959), p. 49. At the heart of Strauss 9s idea is the critical reconstruction of modernity as a break with the ancient and medieval politico-philosophical tradition. See also Shadia B. Drury, The Political Ideas of Leo Strauss (New York: St. Martin 9s Press, 1988); Raimondo Cubeddu, Leo Strauss e la filosofia politica moderna (Naples: ESI, 1983). 5 Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, [1953] 1965), p. 248. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 9 impossible to pronounce any judgment on political regimes. Indeed, it should be recalled that Strauss is trying to restart the search for the best regime and a just society at a moment in history when Europe was being torn apart by Nazism. He is thus trying to find an answer to the cWestern moral and political crisis d and to relaunch political philosophy, that is, cthe attempt truly to know both the nature of political things, and the right, or good, political order. d 6 In this light, the essay On Tyranny seems to take a stand against tyranny 4an absolute evil. With his analysis of Hiero by Xenophon and his condemnation of the lack of any distinc- tion between the king and the tyrant in Machiavelli 9s work, Strauss is trying to show a way of warding off the dangers of tyranny. In this case, therefore, Rothbard 9s comments regarding On Tyranny seem overly severe. By claiming not only the possibility but also the right to pass value judg- ments, Strauss is railing against value-free modern political science. Strauss maintains that the new political scientist as pure spectator is not committed to any value; in particular, he is neutral in the conflict between liberal democracy and its enemies. . . . One is thus led to wonder whether the distinction between facts and values, or the assertion that no Ought can be derived from an Is, is well founded. . . . We conclude that the crel- ativism d accepted by the new political science according to which values are nothing but objects of desire is based on an insufficient analysis of the Is . . . and furthermore that one 9s opinion regard- ing the character of the Is settles one 9s opinion regarding the character of the Ought. . . . At any rate, if a man is of the opinion that as a matter of fact all desires are of equal dignity, since we know of no factual consideration which would entitle us to assign different dignities to different desires, 6 Strauss, What is Political Philosophy? p. 12. See also Raimondo Cubeddu, Giovanni Giorgini, and Flavia Monceri, cLeo Strauss sui diritti naturali e il liberalismo, d Élites 2 (2004): 118 324. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 10 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI he cannot but be of the opinion . . . that all desires ought to be treated as equal within the limit of the possible, and this opinion is what is meant by permissive egalitarianism. 7 In both What is Political Philosophy? and Thoughts on Machiavelli , Strauss criticizes modern thinkers and defends classical political philosophy. For the ancients, virtue rather than liberty is the true end of political life, and political phi- losophy is driven by the search for the best political order. And so, for Strauss, Machiavelli becomes the evil genius of modernity, challenging the ancient Christian teachings and freeing political reality from morality. Concerning the Straussian conception, Rothbard ques- tions the thesis that identified the modern theory of natural rights as a break with the past. He places more emphasis on continuity with the past rather than on a sharp division. According to the continuity thesis, individual natural rights derive from natural law. Rothbard underlines the Scholas- tic, Thomist, and Christian roots of the Lockean doctrine of natural rights. In the individualism of modern natural rights theory, Rothbard finds not a corruption but an enrichment of the natural law tradition, and the beginning of a new way to understand human means and political ends. Thus, while Rothbard appreciates the Straussian idea of natural law as a battle against the prevailing relativism of values, he is unable to accept Strauss 9s invitation to his readers to reclaim cthe classic natural right doctrine in its original form d that, cif fully developed, is identical with the doctrine of the best regime. d 8 Rothbard cites Alessandro Passerin d 9Entrèves in support of the theory that there was a link between Thomism and the Grotian development in the doctrine of natural law and writes that according to Passerin d 9Entrèves the: 7 Leo Strauss, Liberalism, Ancient and Modern (Ithaca, N.Y.: Cornell University Press, 1989; New York: Basic Books, 1968), pp. 220 322. 8 Strauss, Natural Right and History , p. 144. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 11 definition of natural law has nothing revolution- ary. When he maintains that natural law is that body of rules which man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the School- men. . . . Grotius 9s aim, D 9Entrèves adds, cwas to con- struct a system of laws which would carry convic- tion in an age in which theological controversy was gradually losing the power to do so. d Grotius and his juristic successors 4Pufendorf, Burla- maqui, and Vattel 4proceeded to elaborate this independent body of natural law in a purely secu- lar context, in accordance with their own particu- lar interests, which were not, in contrast to the Schoolmen, primarily theological. 9 In An Austrian Perspective on the History of Economic Thought Rothbard states, we should realize that the scholastics may have dominated medieval and post-medieval traditions, 9 Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, N.J.: Humanities Press, 1982), p. 5. The reference is to Alessandro Passerin d 9Entrèves, La dottrina del diritto naturale (Milan: Edizioni di Comunità, 1954), pp. 51 352. It has recently been pointed out that the continuity between natural law and natural rights in the thought of Passerin d 9Entrèves probably refers more to the function historically carried out by natural law rather than to a doctrinal con- tinuity. See Raimondo Cubeddu, cLa concezione del diritto naturale in Alessandro Passerin d 9Entrèves, d in Alessandro Passerin d 9En- trèves pensatore europeo , edited by Sergio Noto (Bologna: Il Mulino, 2004), pp. 179 3210. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 12 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI but that despite this fact, they were pioneers and elaborators of the natural law and natural rights traditions. The pitting of ctradition d versus cmodernity d is largely an artificial antithesis. . . . Locke may have been and indeed was an ardent Protestant, but he was also a Protestant scholas- tic, heavily influenced by the founder of Protestant scholasticism, the Dutchman Hugo Grotius, who in turn was heavily influenced by the late Spanish Catholic scholastics. . . . While Locke developed libertarian natural rights thought more fully than his predecessors, it was still squarely embedded in the scholastic natural law tradition. 10 Within this vision, the Rothbardian idea of a link between the laws of nature and natural rights becomes less distinct at the point where the author emphasizes the enrichment brought by the Levellers and Locke in terms of individualism. Rothbard says that while Aristotle 9s vision of man led to the state being seen as the place of the good and virtuous action, cit was, in contrast, the Levellers and John Locke in seventeenth-century England who transformed classical natural law into a theory grounded on methodolog- ical and hence political individualism. d 11 The continuity the- sis has recently been corroborated by the work of Brian Tierney who clearly questions the ideas of Strauss and Michel Villey on the contrast between an ancient Aris- totelian doctrine of natural law and a modern theory of subjective individual rights. 12 While for Villey the modern 10 Rothbard, An Austrian Perspective , vol. 1, pp. 313 314. 11 Rothbard, The Ethics of Liberty , p. 21. 12 See Strauss, Natural Right and History ; Michel Villey, La for- mation de la pensée juridique moderne (Paris: Editions Montchrestien, 1975); and Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150 31625 (Atlanta, Ga.: Scholars Press, 1997). See also Annabel S. Brett, Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997). L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 13 theory of subjective rights has its roots in the nominalist philosophy of Ockham, Tierney identifies the concept of ius as a subjective right in the writings of the twelfth-century canonists. John Finnis and Germain Grisez also follow the continuity line, but they are really more Kantians than true Thomists. 13 In point of fact, Finnis and Grisez integrate natural law with a deontological theory 4with elements deriving from Kant. 14 While not forgetting the many different positions taken by today 9s supporters of the theory of natural rights, Roth- bard can be counted among those who, like Henry Veatch, base natural rights on the Aristotelian/Thomist theory of natural law. 15 However, Rothbard 9s position is particularly original for two reasons: first, because from the concept of self-ownership, he deduces the axiom of nonaggression, the true cornerstone of the Rothbardian system, which he views as a clarification of the classic triad of the natural rights to life, liberty, and property; 16 second, because of the extreme conclusions that Rothbard arrives at regarding natural law and the role of the state. In fact, Rothbard wants cto estab- lish an objective ethics which affirms the overriding value of liberty, and morally condemns all forms of statism. d 17 The theme of the rational foundation of ethics and absolute values becomes predominant in Rothbard 9s com- ments on the Symposium on Relativism organized by the 13 John Finnis, Natural Law and Natural Rights (Oxford: Claren- don, 1980). 14 Henry B. Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State University Press, 1985), p. 104. 15 For an examination of these distinctions, see Raimondo Cubeddu, cLegge naturale o diritti naturali? Alcune questioni di filosofia politica liberale, d Quaderni dell 9Istituto Acton 15 (2004). 16 It seems that Rothbard owes this idea to Ayn Rand. Cf. Ayn Rand, cMan 9s Rights, d in The Virtue of Selfishness (New York: Signet, 1964). 17 Rothbard, The Ethics of Liberty , p. 213. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 14 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI Volker Fund. The conference, held in 1960, witnessed a contrast between Mises and Leoni on one side, and Strauss on the other. 18 Obviously, in this case, Rothbard sides with Strauss. From the time of his Prefatory Note , Rothbard makes it clear he is in favor of absolute values: The absolutist believes that man 9s mind, employ- ing reason . . . is capable of discovering and know- ing truth: including the truth about reality, and the truth about what is best for man and best for himself as an individual. The relativist denies this, denies that man 9s reason is capable of knowing truth, and does so by claiming that rather than being absolute, truth is relative to something else. . . . Philosophically, I believe that libertarianism 4and the wider creed of sound individualism of which libertarianism is a part 4must rest on absolutism and deny rela- tivism. 19 This represents a clear 4and apparently definitive 4divi- sion within the Austrian School of economics, with Hayek and the Hayekians on one side and many of the American disciples of the School (among whom are libertarians à la Rothbard) on the other. The concept of natural law is in some ways extraneous to the Austrian School of economics, which favors an evolutionary conception of institutions and law following the approach of Menger and Hayek. 18 The conference papers were published in H. Schoeck and J.W. Wiggins, eds., Relativism and the Study of Man (Princeton, N.J.: D. Van Nostrand, 1961). 19 Rothbard, cThe Symposium on Relativism: A Critique d; see p. 103 in this volume. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 15 20 Ibid., p. 103 in this volume. C RITICISM OF THE S UBJECTIVISM OF V ALUES T HE CRITICISM OF M ISES is paradigmatic. Rothbard dis- tances himself from the praxeological and value-free defense of the free market that Mises proposes, and instead sup- ports the need for political philosophy to find universally valid basic values for life in society. Mises bases his own lib- eralism on the subjectivity of values and ends, but for Roth- bard this makes Mises an cethical relativist; d and, in his opinion, ethical relativism is the cgreat defect in this paper. d What I have been trying to say is that Mises 9s util- itarian, relativist approach to ethics is not nearly enough to establish a full case for liberty. It must be supplemented by an absolutist ethic 4an ethic of liberty, as well as of other values needed for the health and development of the individual 4 grounded on natural law, i.e., discovery of the laws of man 9s nature. Failure to recognize this is the greatest flaw in Mises 9s philosophical world- view. 20 The subjectivism of ends and values, and the defense of the free market from a praxeological point of view are cor- rect procedures in the context of praxeology, but they do not satisfy the Rothbardian need for ethics to have a rational basis. Praxeology, the science of human action, tells us that the free-market economy is the best way of achieving the widest possible well-being and the whole variety of human ends 4ends that are subjective, as are the values that under- lie them. The subjectivity of values and ends is the nodal point of Misesian thought and the basis for an open society. Mises follows Hume 9s assumption that it is impossible to derive values from facts. Since the economy is concerned with facts, it cannot have any direct implications for ethics. For Mises, value judgments merely express preferences of a subjective nature that could be considered neither true nor false. Rothbard disagrees with this view of ethics; one prob- lem he sees with it is that it appeals only to subjective val- ues to convince others that the best social system is the mar- ket economy. Mises thinks that the choice of the free mar- ket should be based on the consequences of such a prefer- ence. While not denying that value judgments are the expression of essentially subjective choices, Mises thinks that practically any informed person would choose the free market. In contrast, Rothbard holds that certain facts regarding human nature will produce objective judgments about what is best for man. Moreover, Rothbard does not consider Mises 9s main arguments regarding capitalism fully satisfactory. Mises 9s attempt to found capitalism on a sub- jective basis, albeit valid as far as it goes, requires a further supporting argument. Rothbard is one of those authors who maintains that, in practice, few of our judgments are cpure d in the sense required by the facts-values dichotomy. Although it is not possible to derive prescriptive statements from facts, we can derive them from judgments on facts. This is Strauss and Philippa Foot 9s position. 21 Besides this, in Rothbard 9s opinion, there are self-evident truths able to provide a basis for an objective ethics. The ownership of oneself, of one 9s own body, is an example of such a truth. Mises rejects this position; and according to his way of thinking, criteria for objectively eval- uating value judgments do not exist: The ultimate end of action is always the satisfac- tion of some desires of the acting man. Since nobody is in a position to substitute his own value judgments for those of the acting individual, it is vain to pass judgment on other people 9s aims and volitions. No man is qualified to declare what 21 See Strauss, Natural Right and History (Los Angeles and Berkeley: University of California Press, 1978); Philippa Foot, Virtues and Vices (Oxford: Blackwell, 1978) and Natural Goodness (Oxford: Clarendon Press, 2001). M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 16 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI would make another man happier or less discon- tented. 22 Given his ethical subjectivism, Mises rejects the entire notion of natural law. The teachings of utilitarian philosophy and classi- cal economics have nothing at all to do with the doctrine of natural right. . . . They recommend popular government, private property, tolerance, and freedom not because they are natural and just, but because they are beneficial. 23 Why does Rothbard resort to an argument of an ethical nature to support the free market? He must, after all, have been aware that the question of natural law is extremely controversial. Rothbard explains that Mises 9s way of pro- ceeding is correct in relation to praxeology, but it is never- theless unable to tell us what is best for the human being. In brief, Mises 9s reasoning does not satisfy the Rothbardian requirement of establishing an objective and rational basis for liberty. Mises shows that policies constraining the mar- ket economy would lead to undesired consequences for almost all people. Once this has been demonstrated, every- one should logically accept the market economy. Rothbard points out that the situation is not quite so simple, since some individuals could actually desire consequences such as shortages of goods, hunger, or poverty to occur. Alterna- tively, some could have a short-term interest in favoring heavily interventionist policies; others could be egalitarian 22 Ludwig von Mises, Human Action: A Treatise on Economics , scholar 9s edition (Auburn, Ala.: Ludwig von Mises Institute, 1998), pp. 18 319. 23 Mises, Human Action , p. 174. On the different positions of Mises and Rothbard on these questions, see David Gordon, cLe implicazioni etiche e politiche della Scuola austriaca di economia, d in David Gordon and Roberta A. Modugno, eds., Individualismo metodologico: dalla Scuola austriaca all 9anarco-capitalismo (Rome: Luiss Edizioni, 2001), pp. 36 371. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 17 M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 18 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI even to the point of preferring equal poverty for all; still oth- ers could be nihilistic and desire a scarcity of goods or could complain about the excessive well-being of our society and its waste of resources. Some might have a short-term inter- est linked to interventionist policies and desire positions of power within the bureaucracy. These various possibilities contradict Mises 9s conviction that all supporters of state intervention will become supporters of the free market once they have grasped the logical consequences of a reduction in market freedom. Rothbard 9s intention is to make his own argumentation in support of freedom more persuasive. 24 Anyone who understands all the benefits to be derived from the free mar- ket 4well-being, peace, and cooperation 4and is still against it, must address an argument of an ethical nature. According to Rothbard, this would be an objective and rational argument. He finds in natural law a guide to enable us to understand what are the best ends for man, i.e., what ends are in accordance with human nature. He writes, cThe natural law . . . elucidates what is best for man 4what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature. d 25 The Aristotelian/Thomist formulation of the idea of a natu- ral law plays a very important role in Rothbard 9s theory, which takes up the idea of an order of natural laws that can be uncov- ered by reasoning: 24 In Power and Market Rothbard expresses some uncertainties about a position attempting to defend freedom solely on the basis of value-free positions 4an attempt lacking any persuasive force for those who intend to impose their own values by coercion and who persist in their intentions even when they have been shown the prob- able disastrous economic consequences of abandoning the free-mar- ket economy. See Power and Market (Menlo Park, Calif.: Institute for Humane Studies, 1970), p. 209. 25 Rothbard, The Ethics of Liberty , p. 10. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 19 In the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason. . . . Aquinas, then, realized that men always act pur- posively, but also went beyond this to argue that ends can also be apprehended by reason as either objectively good or bad for man. 26 Rothbard also reproaches Bruno Leoni regarding ethical relativism because Leoni was cscornful of the very idea that ethical values should be rationally demonstrated, d while cvalues should be demonstrated because reason is the only sure, solid ground of conviction about values. d 27 Again, when reviewing Freedom and the Law by Leoni, Rothbard criti- cizes Leoni 9s theory because it lacks a standard on which to judge the content of laws that had evolved over time. It is not enough to affirm the existence of a spontaneous process from which customs and institutions developed; it is neces- sary to subject them to the strict test of reason in order to judge their conformity or otherwise with individual freedom on the basis of an objective ethical standard. 28 Rothbard, contra Mises, thinks it possible to deduce eth- ical principles from certain facts regarding human nature. He maintains that Individual human beings are not born or fash- ioned with fully formed knowledge, values, goals, or personalities; they must each form their own values and goals, develop their personalities, and learn about themselves and the world around them. Every man must have freedom, must have the scope to form, test, and act upon his own choices, for any sort of development of his own 26 Ibid., p. 5. 27 Rothbard, cThe Symposium on Relativism: A Critique d; see p. 103 in this volume. 28 Murray N. Rothbard, cOn Freedom and the Law, d New Individ- ualist Review 1, no. 4 (1962): 37 340. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 20 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI 29 Murray N. Rothbard, The Logic of Action II: Applications and Criticism from the Austrian School (Cheltenham, U.K.: Edward Elgar, 1997), pp. 3 34. Originally prepared for the Symposium on Human Differentiation, for the Institute of Paper Chemistry in Appleton, Wisconsin, 1970, and sponsored by the Institute for Humane Studies. 30 See Veatch, Human Rights . 31 Murray N. Rothbard, cIn Defense of 8Extreme Apriorism 9, d in The Logic of Action I: Method, Money and the Austrian School (Cheltenham, U.K.: Edward Elgar, 1997), pp. 105 306. personality to take place. He must, in short, be free in order that he may be fully human. 29 Rothbard 9s formulation seems, at its heart, to be very close to the so-called Veatch School in that it is character- ized by the rehabilitation of Aristotelian/Thomist meta- physics for the foundation of natural law and the consequent anchoring of natural rights. 30 Furthermore, even when Roth- bard follows a deductive, axiomatic approach 4 beginning with the axiom of human action, which is considered a self- evident truth 4 this truth is founded on the nature of man, thus placing it in an Aristotelian/Thomist context, as opposed to the Kantian context in which the a priori truth of human action would be considered a consequence of the log- ical structure of the human mind. 31 Instead, Rothbard derives the right of self-ownership from natural law, rather than considering it an axiom, since it is in harmony with what is supposed to be the natural end of the human being 4 the promotion of his own survival. While the starting points for Rothbard and Veatch are very similar, the two authors differ profoundly as regards the concept of the common good and the role of the state. Veatch thinks that the state should be an instrument, the institutional framework by means of which all the rights of life, freedom, and ownership could be guaranteed, in order that each person can realize himself as a human being, i.e., realize the end that is in accordance with man 9s nature. The concept of the common good is therefore strictly bound to L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 21 this conception. The common good means that group of institutions allowing citizens within the polis to enjoy the necessary conditions for the good life or, rather, to live as human nature requires. 32 For Rothbard, on the other hand, the concept of the justice of private property makes any kind of taxation 4and therefore the state 4unacceptable. There are also profound differences with Passerin d 9En- trèves, whom Rothbard quotes in support to the theory of the continuity between natural law and natural rights. He obviously does not agree with him regarding the conception of the state. The question of the relationship between Veatch and libertarianism merits further examination. In fact, as regards the idea of the common good not as an end in itself but rather as an instrument or an intermediate objective, Veatch declares his own intellectual debt to Dou- glas Den Uyl and Douglas Rasmussen. What is more, in Human Rights: Fact or Fancy? besides thanking the liber- tarians, he recognizes the stimulus and support he received from Den Uyl, Rasmussen, and Rothbard. 33 Although he says he is not a libertarian, Veatch clearly appreciates the support of the libertarians for individual rights and ctheir determination to find a proper philosophical justification for such rights. d 34 However, when Veatch goes on to consider the libertarian basis for individual rights, he seems to examine only one particular version of libertarian ethics, defined as ethical or rational egoism. According to rational egoism, the consequences of a lack of respect for agreed rights and obligations is so serious that everyone should consider it in his own personal interest to conform to the rules guaranteeing the respect of individual rights. Veatch writes, crational individualism . . . is often associated with present-day libertarianism. d 35 While, on the one hand, 32 Veatch, Human Rights , p. 122. 33 Ibid., p. ix. 34 Ibid. 35 Ibid., p. 39. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 22 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI it is possible to recognize the merits of rational egoism (in contrast to utilitarian ethics) in not sacrificing individual rights to the objective of the greatest happiness for the great- est number; on the other hand, Veatch thinks that can ethics that is erected entirely upon considerations of rational self- interest is not really an ethics at all. d He further criticizes this type of libertarian ethics when he writes, [W]ho can ever honestly believe that human beings can, by and large, be persuaded . . . to rec- ognize that it is in their own interest to respect the rights of others to life, liberty, property, and all the rest; and that, seeing that such moral and law abiding behavior is in their own interest, they will then act accordingly? All of this seems, alas, highly unlikely. 36 In this way, Veatch reclaims and relaunchs the idea of anchoring natural rights in Aristotelian/Thomist meta- physics. What seems strange is that Veatch makes no refer- ence whatsoever to Rothbard 9s Ethics of Liberty , even though he recognizes that rational egoism is by no means the only form that libertarian ethics can assume. He also affirms that clibertarianism d is not a univocal term but one that encompasses various different strands of moral philos- ophy. 37 Rothbard follows a similar path to that of Veatch, founding natural law and natural rights on Aristotelian/Thomist metaphysics; and he demonstrates that he has taken up Veatch 9s suggestions, to which he makes references on several occasions. 38 However, there 36 Ibid., p. 46. 37 Veatch does, however, include Rothbard 9s volume in the bibli- ography. 38 In Ethics of Liberty , Rothbard quotes the following works by Veatch: For an Ontology of Morals: A Critique of Contemporary Eth- ical Theory (Evanston, Ill.: Northwestern University Press, 1971) and Rational Man: A Modern Interpretation of Aristotelian Ethics (Bloomington: University of Indiana Press, 1962). L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 23 seems to have been a more explicit and direct relationship between Henry Veatch and Den Uyl and Rasmussen, who were even closer philosophically to Veatch than Rothbard had been. C RITICISM OF H AYEK : H ISTORICAL R IGHTS AND N ATURAL R IGHTS R OTHBARD 9 S CRITICISM OF H AYEK 9 S formulation, both evolu- tionist and fallibilist, is closely connected to the discussion of natural law. The fact that Hayekian and Rothbardian premises are irreconcilable emerges in the two reviews of Constitution of Liberty . To explain the reasons for liberty, Hayek starts from evolutionary and fallibilist positions that are inevitably going to contrast with the doctrine of natural law and rationalism, the latter being the premises for Roth- bard 9s anarcho-capitalist theory. In Rothbard 9s opinion, one of the shortcomings of Hayek 9s work is that he totally ignores the tradition of natural law, even when discussing theorists who were actually great supporters of the doctrine of natural law, as in the case of John Locke. Hayek seems to be unaware of this great tradition of thought, which played such an important role in the growth of liberal ideas, in safeguarding the intangible individual sphere, and in lim- iting the powers of the state 4and which, we should not forget, contributed so much to the history of constitutional- ism itself, given the links between natural rights, contractu- alism, and constitutionalism. 39 39 On the historical role of the notion of natural law, see Passerin d 9Entrèves, La dottrina del diritto naturale, and Guido Fassò, La legge della ragione (Milan: Giuffrè, 1999). M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 24 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI As it happens, this subject is more complex than first appears. We have to bear in mind that Hayek uses evolution- ary premises as a starting point for his thinking about the rule of law and law in general. It represents one of the greatest expressions of the tradition of spontaneous order developed by Adam Smith and Adam Ferguson in the Scottish Enlight- enment and which, continued by Edmund Burke, led to Friedrich Carl von Savigny, Henry Maine, and Carl Menger and the Austrian School of economics. In Hayek 9s work, the fundamental concept, and one of his most original ideas, is that of cultural evolution, which has to do with the origin and development of institutions such as religion, law, the market, and, in general, self-generating and self-regulating systems that shape a complex society. In this sense, for Hayek, rights are certainly not natural ; but, given that they have evolved spontaneously, they cannot be termed artificial either. A starting point in Hayek 9s thought is the false dichotomy between natural and artificial , the latter term identifying the product of an intended project. This dichotomy obstructs the correct understanding of the process of cul- tural evolution that produced our traditions and our civi- lization. There is, however, an intermediate category of phe- nomena resulting from human action but not from human planning. Following the reasoning of the late Scholastics, the Spanish Jesuits who used the term naturalis to indicate social phenomena that had evolved over time, 40 Hayekian teaching explains that cIn this sense, our traditional, spon- taneously evolved morals are perfectly natural rather than artificial, and it would seem fitting to call such traditional rules 8natural laws 9. d 41 In other words, something is natural if it has evolved spon- taneously over time. What is important is to go beyond the 40 This particular reference is to Louis de Molina. See F.A. Hayek, Law, Legislation, and Liberty , 2 vols. (London: Routledge, 1982). 41 F.A. Hayek, The Fatal Conceit (London: Routledge, 1988), p. 143. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 25 false dichotomy that, by considering anything driven by a con- scious plan as artificial and anything with instinctive charac- teristics as natural, brings us inevitably to a rationalist con- structivism. This is why Hayek deplores the fact that the early signs of an evolutionist model to explain society have been abandoned in favor of a different conception of natural law understood as rationalist law, a law according to reason. 42 42 The term rationalism indicates an attitude of unshakeable faith in the creative capacities of human reason in the field of social and political institutions. This attitude leads to the belief that any insti- tution and any order are the result of an intended and conscious plan, in the belief that reason can control and plan everything that man does. Hayek writes that chuman institutions are made by man. Though in a sense man-made, i.e., entirely the result of human actions, they may yet not be designed, not be the intended product of these actions. d Constructivism consists in cthe belief that since all 8institutions 9 have been made by man, we must have complete power to refashion them in any way we desire. d See F.A. Hayek, The Counter-Revolution of Science: Studies in the Abuse of Reason (Glencoe, Ill.: The Free Press, 1952). The cspontaneous order d school of thought maintains that a large part of human institutions did not necessarily derive from a mind that planned and directed them, i.e., institutions, law, and customs are the result of human action but not the result of a human plan; rather, they are the con- sequences of spontaneous collaboration among individuals. This is the great theme found in Bernard de Mandeville, David Hume, Adam Ferguson, Adam Smith, and Edmund Burke, right up to the main exponents of the Austrian School of economics, Menger, Mises, and Hayek. It was in fact Hayek who, on the basis of a different attitude to constructivist rationalism, introduced the categories of true and false individualism into the history of liberal thought. True individu- alism highlights the limits and the fallibility of human reason, while false individualism holds that reason is able to plan everything and leads to the claim of infallible social engineering. See F.A. Hayek 9s cIndividualism: True and False d in Individualism and Economic Order (London: Routledge and Kegan Paul, 1949). Awareness of the limits to reason and to all that rationality could intentionally achieve in the field of political and social institutions, and thus the impossi- bility of a totally rational way of acting in the Cartesian sense, derives from the inevitable limitations of our knowledge. In other words, it would not be possible to have total knowledge of all the rel- evant facts regarding social structure and human activities. As Hayek These are the theoretical premises that led Hayek to question some entrenched views in the history of political institutions. First and foremost is the idea that a normative system has been intentionally created by someone or is the result of an explicit agreement. For Hayek, both the assumption that a right is the fruit of the famous Bodinian sovereignty 4the power to make and break laws 4and the contractualist assumption are only the result of a construc- tivist rationalism that stands in the way of a correct under- standing of the evolution of political and social institutions. It is a short step to the criticism of legal positivism, which, in fact, proves on examination to be entirely based on what we have called the constructivist fallacy. It is explains, cA designer or an engineer needs all the data and full power to control or manipulate them if he is to organize the material objects to produce the intended result. But the success of action in society depends on more particular facts than anyone can possibly know. d It is important to remember cthe necessary and irremediable ignorance on everyone 9s part of the particular facts which determine the actions of all the several members of human society d (F.A. Hayek, Law, Legislation, and Liberty , vol. 1, Rules and Order [London: Routledge, 1973], p. 29). Scattered and fallible knowledge encour- ages holding both the gradualism and the experience of the past in high esteem. Awareness of the existence of the inevitable, uninten- tional consequences of intentional human actions leads to severe crit- icism of rationalism or constructivism. Criticism of the constructivist presumption is further extended by Karl R. Popper. Popperian epis- temology 4claiming that the study of society necessarily depends on one 9s perspective, as is the case when studying any subject 4explains that infallible social engineering is impossible. Popper makes a dis- tinction between utopian social engineering and step-by-step mechanics: cThe piecemeal engineer knows, like Socrates, how lit- tle he knows. He knows that we can learn only from our mistakes. Accordingly, he will make his way, step by step, carefully comparing the results expected with the results achieved, and always on the look-out for the unavoidable unwanted consequences of any reform. d See Karl Popper, The Poverty of Historicism (Boston: Beacon Press, 1957), p. 67. On this subject, see also Dario Antiseri, Liberi perché fallibili (Soveria Mannelli: Rubbettino, 1995) and Trattato di metodologia delle scienze sociali (Turin: UTET, 2000). M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 26 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI actually one of the main offshoots of that ratio- nalist constructivism which, in taking literally the expression that man has cmade d all his culture and institutions, has been driven to the fiction that all law is the product of somebody 9s will. 43 In the field of law, Hayek wants to rehabilitate the evo- lutionist teachings of Edward Coke and Matthew Hale, in stark contrast with Thomas Hobbes or, in more recent times, with Hans Kelsen. This is how things like jus gen- tium , mercantile law, the customary laws practiced at fairs, and common law took the form of a cosmos , that is, of a spontaneous order that made use of the knowledge scat- tered among different individuals, and in which no single mind had a planning or coordinating role. Following Nicola Matteucci 9s ideas, it is therefore possible to conceive a Hayekian position that is not in direct contrast with the con- cept of natural law, understood, obviously, in terms of cul- tural evolution. Matteucci underlines the fact that for Coke and the English jurists, there was no contrast between nat- ural law and common law, because the latter was simply the implementation of the natural law principles from which it developed historically over the centuries and with the con- sensus of many generations. 44 It is precisely in this sense that Edward Coke was able to write that the common law expressed the cperfection of rea- son . . . because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to a such perfection. d 45 43 Hayek, Law, Legislation, and Liberty , vol. 1, p. 29. 44 Nicola Matteucci, Lo Stato moderno (Bologna: Il Mulino, 1997), pp. 135 336. 45 Edward Coke, Institutes of the Laws of England , vol. 1 (Lon- don: Society of Stationers, 1628), lib. 2, fol. 97b, sect. 138. The complete passage from Edward Coke is as follows: And this is another strong argument in law, nihil quod est contra rationem est licitum , for reason is the life L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 27 M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 28 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI In a customary constitution, reason is immanent, but not the abstract reason of the rationalists; it is rather historical reason in which, in the English legal and political tradition, there is less of a rigid contrast between nature and history. In Matteucci 9s opinion, even John Locke 9s great work on natural law essentially speaks of a tradition that became rationalized and universal. Once again, we find the idea that what is natural is that which has evolved. However, the question of the relationship between Hayek and natural law is certainly not easy to define. For example, Charles Covell came to place Hayek among the cdefenders d of natural law, although he makes it clear that he considers Hayek a defender of natural law by virtue of his opposition to legal positivism, rather than for any connection with the nat- ural-law tradition, which is totally lacking in Hayek 9s work. 46 Covell says that there is another perspective from which Hayek refers to a cnatural d model, a perspective that is, in a certain sense, linked to Matteucci 9s ideas. Covell writes, cHayek constructed an essentially naturalistic model of law which looked back to the tradition in legal philosophy of Coke and Blackstone. d 47 In this way, Hayek rejects both legal positivism, for its constructivism, and also the idea of the of the law nay the common law itself its nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observa- tion, and experience. . . . This legal reason est summa ratio. And therefore if all the reason, that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is; because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, . . . and by long experience growne to a such perfection. 46 Charles Covell, The Defence of Natural Law: A Study in the Ideas of Justice in the Writings of Lon L. Fuller, Michael Oakeshott, F.A. Hayek, Ronald Dworkin, and John Finnis (London: Macmillan, 1992), p. xiii. 47 Ibid., p. xiv. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 29 rule of law based on a voluntarist model derived from Thomas Hobbes. William Blackstone makes a particular use of the concept of natural law when, in order to demonstrate the moral basis of the English legal system, he defines Eng- lish law as being based on the principles of natural law, estab- lished by God, that the human mind is able to discover. As a result, cthe common law had been developed 4or rather dis- covered 4by the English courts in accordance with proce- dures of adjudication in which legal rules and precedents were established through an application to individual cases of the principles of morality and reasonableness that ran through the whole structure of English law. d 48 Thus, we find a creasonableness d not unlike Edward Coke 9s reason, which is founded in the common law by virtue of the historical process through which it has developed. Hayek favors English common law, law discovered by the judges, creating a spontaneous order. On the contrary, he is against the idea that had taken root in absolutist states, that the act of making and breaking laws is the essence of sover- eignty 4a deliberate act of the sovereign 9s will. Hayek also takes issue with Cartesian-based rationalism. This school of thought ignores the distinction between taxis and cosmos , i.e., between systems and associations whose formal structure is characterized by a constructed order, and those systems that, on the contrary, developed and took root by means of an evolutionary process and which could there- fore be defined as spontaneous orders. Constructivist ration- alism concentrates its attention exclusively on the institu- tions of the first type, overlooking the fact that intentionally constructed forms of human association are often supported on the wider base of a spontaneous order. Hayek counts the common-law legal system among those that can be charac- terized as a cosmos and ascribes it to the evolutionary ration- alism that led to the configuration of the natural process that Covell defines as clegal naturalism. d 49 Covell explains that, in 48 Ibid., p. 3. 49 Ibid., p. 143. M URRAY N. R OTHBARD VS . THE P HILOSOPHERS : U NPUBLISHED W RITINGS 30 ON H AYEK , M ISES , S TRAUSS , AND P OLYANI this sense, for Hayek, claw and legal institutions should be examined in their relation to the processes which governed the evolution of the customary and tradition-based practices embedded in actual historical communities. d 50 Having said this, it should nevertheless be emphasized that Hayek is above all a great defender of the rule of law and that he prefers the concept of cultural evolution to that of human nature. The truly irreconcilable points between the evolutionist theory of law and Rothbard 9s adherence to the concept of natural law are rationalism and fallibilism. One of Roth- bard 9s severest reprimands is, in fact, cHayek 9s continuous and all-pervasive attack on reason. d 51 In reality, Hayek 9s attack is against the abuse of reason, against that construc- tive rationalism that leads to an infinite faith in the capac- ity of human reason to shape social and political institutions as it pleases. In order to avoid any misunderstandings, it should be noted that Hayek is not an anti-rationalist, saying, cit is therefore better in this connection not to distinguish between 8rationalism 9 and 8anti-rationalism 9 but to distin- guish between a constructivist and an evolutionary, or, in Karl Popper 9s terms, a naïve and a critical rationalism. d 52 Given these premises, Rothbard is unable to share the Hayekian idea of true and false individualism, which con- trasts a rationalist tradition that is mainly French (in the Cartesian mold and moving toward a constructivist pre- sumption) with a British, evolutionist, empirical and truly liberal tradition connected by Hayek to the Whig tradition. Rothbard criticizes the fact that thinkers of the caliber of Thomas Jefferson, Richard Price, Joseph Priestley, and Thomas Paine were undervalued and seen as cterrible ratio- nalists. d Rothbard makes a further comment, and one that 50 Ibid., p. 128. 51 Rothbard, cMemo to the Volker Fund on F.A. Hayek 9s Consti- tution of Liberty d; see p. 61 in this volume. 52 Hayek, Law, Legislation, and Liberty , vol. 1, p. 29. L AW AND N ATURE IN THE W ORK OF M URRAY N. R OTHBARD 31 seems justified, concerning Hayek 9s having overlooked the French liberal thinkers of the nineteenth century 4such as Frédéric Bastiat, Gustave de Molinari, and Charles Dunoyer. 53 (Molinari, o

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