A Flawed Conception of Freedom (22 March 2023; Hayek)

Hayek claims that the basis of a free society is to be laid upon his definition of liberty, which he defines as “freedom from coercion.” In terms of freedom from coercion, Hayek defines a free state as a “state in which a man is not subject to coercion by the arbitrary will of another” (58h). In this essay, I will argue that critical errors in Hayek’s definition of coercion in the context of law lays the framework for laws which are conducive to an unfree state. An enactment of his philosophy concerning law would lead to a society which lacks freedom, and a government which is guided by legal principles that may in fact lead to obscene acts of coercion. In my discourse, I’ll prove my thesis over the course of a few sections: The first section of my essay will consist of background information on Hayek’s conception of liberty, oriented around freedom from coercion, using PI.I of Hayek’s Constitution of Liberty (CoL). Additionally, it will reference PII.IX, PII.X of Hayek’s CoL, recounting his views on how a state should create its laws based upon the premise of freedom from coercion. The intent of section one is to produce a brief understanding of Hayek’s arguments concerning a free state, which is referenced in the main argument of this paper. Section two will contain my skepticism regarding his views, discussing why his attempt at defining law in the context of coercion for the purpose of a free society is flawed. Section three will reference Hamowy’s, Hayek’s Concept of Freedom: A Critique, and Rothbard’s, F.A. Hayek and the Concept of Coercion as support for my arguments. Section four will dispel a counterargument that a scholar of Hayek might raise. Finally, section four will reference Martha Nussbaum’s Creating Capabilities to provide an alternate view of freedom, in which I’ll argue that Hayek’s single criteria for a free society is insufficient when freedom is viewed as a more complete and holistic topic.

Section I: Liberty & Coercion and the Law

To Hayek, a free society is one which is as free from coercion as possible (CoL, 58h). It is a freedom from something (negative freedom, in this case, coercion), which he supposes will allow one to “[act] according to his own decisions and plans” (CoL, 59h). In contrast, one who is subject to the will of another cannot carry out their own method to reach their maximum potential. Therefore, in order to maximize the potential to pursue one’s own interests, the “Task of a policy of freedom must therefore be to minimize coercion” (CoL, 59h). With the implications of coercion in mind, Hayek believes it is important to be free from coercion not only from the government but also from other individuals. To enforce this, the threat of coercion is then necessary to prevent its occurrence in free society. So as not to become coercive in itself, the threat of coercion is restrained through “known [general] rules… [which] becomes an instrument assisting the individuals in the pursuit of their own ends and not a means to be used for the ends of others” (CoL, 72h).

Hayek begins his discussion of rules by which society should be governed with a distinction between being compelled by circumstances in a mutual agreement and coercion by another. Coercion is not necessarily attached in the instance that an individual is given a choice by another: “Coercion should be carefully distinguished from the conditions or terms on which our fellow men are willing to render us specific services or benefits… in a free society these mutual services are voluntary, and each can determine to whom he wants to render services and on what terms” (CoL, 202-203h). In terms of these mutual services and dealings, Hayek concludes, “so long as the services of a particular person are not crucial to my existence or the preservation of what I most value, the conditions he exacts for rendering these services cannot properly be called ‘coercion’” (CoL, 203h).

In order for a state to be effective, in addition to threatening coercion to those who may coerce, a state must threaten coercion towards its subjects to get them to perform certain actions which better the state. Hayek cites taxation and compulsory military service as examples. These state acts of coercion, while unavoidable to its subjects, are predictable, and thusly, he argues, reduce the evil impact of their coercive nature. Regarding compulsory service, he writes, “a predictable limited period of military service certainly restricts the possibility of shaping one’s own life less than would, for instance, a constant threat of arrest resorted to by an arbitrary power to ensure what it regards as good behavior” (CoL, 210h). To Hayek, the predictability of this coercion, and not allowing one individual to possess the power of coercion (CoL, 210h), reduces the overall negative impact of coercion. 

The threat of coercion by the state can be justified by its power towards mitigating violence, fraud, coercion, and deception amongst its subjects. Mitigation of these factors allow an individual to pursue their interests unimpeded (CoL, 211h). He summarizes by saying the whole legal system “should accept only the prevention of more severe coercion as the justification for the use of coercion by government” (CoL, 211h).

Concerning laws, they should be abstract in their application to the populous. Abstractness implies generality (CoL, 222h), and applicability to all regardless of particular circumstances. He says, “law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere at any time” (CoL, 218h). Because of the equal applicability to all, and the abstract nature of the rules, they have the potential to severely limit freedom, or be coercive. As will be explored in the following section, the absence of specificity in Hayek’s conception of law leaves too much wiggle room for it to be considered as a strong foundation for free society. A totalitarian regime could follow Hayek’s proposed axioms of law, while still utilizing gray areas to enact coercive policies. He claims that the safeguard against this is that “rules must apply to those who lay them down and those who apply them– that is, to the government as well as to the governed– and that nobody has the power to grant exceptions” (CoL, 223h). 

Section II: A Flawed Conception of Liberty

I shall begin my argument against Hayek by arguing that Hayek doesn’t provide adequate information to determine which actions are coercive and which are not, which in turn, makes the basis of any law centered upon mitigating coercion shaky at best. As mentioned in section I, Hayek attempts to distinguish mutual agreements between subjects from coercion, as in both instances, subjects make a choice based upon the will of another. He writes, “so long as the services of a particular person are not crucial to my existence or the preservation of what I most value, the conditions he exacts for rendering these services cannot properly be called ‘coercion’” (CoL, 203h). The concept of “value” as it concerns a subject introduces the obvious issue of subjectivity. What one may value most, another individual may not value the same thing to the same degree (and vice versa). For example, if I wanted to go to a friend's house to study philosophy, but I could only attend on the condition that I were to bring snacks, Hayek would argue that I’m not being coerced. Because my attendance at my friend’s house wouldn’t threaten what was “crucial to my existence” or the preservation of what I most value, I am not being coerced to bring snacks in order to attend. What if studying philosophy with friends was something I valued very highly? Would the requisite that I must bring snacks be an instance of coercion? At what threshold of “value” does something go from terms of an agreement to coercion? If the role of the governing body is to mitigate coercion amongst its subjects, because of the susceptibility to subjectivity in Hayek's diction of “what I most value,” it would be impossible for a government to mitigate this coercion without knowing what its subjects value most (which is not possible to know or enforce abstractly upon all). 

Further, I am skeptical of what he labels as coercion in a seemingly non-coercive situation. Hayek claims that a monopolist that owns an oasis, the only water supply available to a town, has a strong risk of exercising coercion: “Let us say that other persons settled there on the assumption that water would always be available at a reasonable price and then found… that they had no choice but to do whatever the owner of the spring demanded of them if they were to survive” (CoL, 203h). This seems to be in immediate contradiction to what was stated earlier on the same page when he wrote, “Coercion isn’t the same as conditions or terms on which fellow men are willing to render us specific services or benefits… in a free society these mutual services are voluntary and each can determine to whom he wants to render services and on what terms” (CoL, 202-203h). Sure, at a glance, it may seem as though a single individual maintaining authority over the cost for survival of the townspeople puts the oasis owner in a position conducive to coercion. To survive, if the oasis owner is going to sell them water, they’d be obliged to pay any price he names to survive. Under Hayek’s terms though, this accusation of coercion becomes problematic. The nature of the oasis problem implies that the owner of the oasis is willing to engage in the exchange of mutual services in the first place. If, as Hayek claims, exchanging mutual services is voluntary, the owner of the oasis could rightfully choose not to partake in the exchange of mutual services with the townspeople. He has no obligation to engage in exchange with the townspeople. While the townspeople would not be coerced, if they’re dead, they’d be unable to pursue their own aims (which is the goal of freedom from coercion), making this the first flaw in the oasis scenario. 

If the owner of the oasis voluntarily decides to engage in the exchange of mutual services with the townspeople, on the one hand, there’s no price too high that he could charge. He can, as Hayek put it, “determine whom he wants to render services and on what terms.” On the other hand, while Hayek states that the townspeople settled on the assumption that water would be available for a reasonable price, there is no such clarification on what a reasonable price may be. Is $1 too much to ask for survival? Or maybe $1000? There is no reference in the economy to which the price can adjust to or compete with. There’s unlimited demand for a single item. As stated in Section II, while speaking of the exchange of mutual services, Hayek writes, “so long as the services of a particular person are not crucial to my existence or the preservation of what I most value, the conditions he exacts for rendering these services cannot properly be called ‘coercion’” (CoL, 203h). Since the sale of water is conducive to the existence of the townspeople, it seems that under Hayek’s terms, any price would be coercive; yet that hardly seems fair to the owner of the oasis, who then would not be able to pay bills or purchase food, in which case they’d be better off not selling the water at all. If, in the case that the oasis owner voluntarily decides not to sell the water, the people rebel, the result would be coercion against the owner of the oasis. The abstractness of Hayek’s “what is allowed and what is not allowed” under terms of coercion obscures what may be called a “fair price.” I believe that charging such exorbitant prices would be coercive; yet, as I have shown, contradictions in Hayek’s terms make it difficult to ascribe which actions would or would not be coercive in this situation.

The issue is amplified when it comes to specific state acts of coercion. Hayek argues that some acts, as referenced in section I, such as taxation and conscription, are necessary acts of coercion by the state. He claims that because these things are predictable, the evil nature of coercion about them is reduced. One can plan their path around the acts of coercion that await. Where Hayek fails is that he doesn’t adequately distinguish which predictable rules a state can implement that cross the boundary between acceptable coercion and oppressive coercion. Laws are “‘once-and-for-all command[s] directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time” (CoL, 218h). Because of their widespread application, the complete lack of distinction and definition of what governmental actions may be considered excessively coercive (extending beyond what Hayek believes is acceptable government coercion) leaves an open opportunity for a government to coerce its citizens, resulting in an extremely unfree society. Under these premises, it is perfectly logical for a government to mandate slavery for 10 years of a person's life, as long as it applied to everyone, and was predictable. An epistemological skeptic, Hayek may have felt obliged to leave the rules a state should implement as unconstrained as possible for any future matters that may arise, so as not to impose faulty restrictions that may inhibit society in the future. I believe his lack of input in this distinction is inexcusable. As exemplified above, there are certain instances which should be explicitly denounced, so that future laws remain conducive to a society free from coercion.

Section III: A Counter-Argument

A defender of Hayek’s philosophy might argue that because the laws are abstract and must apply to all, the state wouldn’t want to facilitate rules which are excessively coercive against its citizens because it would directly harm those in the governing body. On page 223, Hayek writes, “General, abstract rules, equally applicable to all, may possibly constitute severe restrictions on liberty… The chief safeguard is that rules must apply to those who lay them down and those who apply them– that is, to the government as well as to the governed– and that nobody has the power to grant exceptions” (CoL). 

While it is true that a governing body would not want to facilitate rules which might harm themselves, Hayek later writes that “the requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess” (CoL, 222h). Thus, the law is not completely abstract, and a presiding government may be able to find a way to enact laws which harm some and benefit others. I concede that this is a rare case, so I’ll broaden my scope. Hayek’s example in  reference to conscription only encompasses men. This is a clear example of selection in law. It applies to “all” in the given group, yes, but it still applies to a certain group of the population. A governing body would have the ability to create coercive laws which harm a certain group to the end of another on these terms.

Section IV: An Alternative Perspective of Freedom

Nussbaum, in her work, “Creating Capabilities,” takes a different approach to freedom than Hayek. To Nussbaum, freedom represents a choice one can make: one should be able to take “a set of opportunities, or substantial freedoms” (CC, 18) that a society should offer, “[committing] itself to people’s powers or self-determination” (CC, 18). Nussbaum’s conception is a different type of freedom than the one Hayek offers, in that it is a freedom to, or rather a freedom that offers the opportunity to access capabilities that may benefit the lives of those living in society. She believes that government plays a key role in establishing those opportunities: the capabilities approach “ascribes an urgent task to government and public policy—namely, to improve the quality of life for all people, as defined by their capabilities” (CC, 19). As it stands, in Hayak’s conception, those who are impoverished, say, due to a drug addiction they incurred while working a high-stress job (such as mandatory conscription in the military) would not be free in Nussbaum’s eyes as they are not afforded essential capabilities. To afford those capabilities, governmental interference in the distribution of wealth would be necessary to offer citizens the ability to pursue their capabilities. Hayek would disapprove of this, as to him, governmental redistribution is a pathway to totalitarianism, especially when it involves such specifics as capabilities, of which such widely varying knowledge cannot be known. He thinks that an individual, impoverished, but not under the influence of coercion, is freer than a courtier that lives a lavish life, yet is subjected to coercion from the prince who dictates certain aspects of his life (CoL 68). Nussbaum would argue that Hayek is ignoring the fact that the courtier lives a life of dignity, and may be able to fulfill their own capabilities, whereas the impoverished citizen would not be afforded the same opportunity.

Nussbaum’s capabilities approach is heavily reliant upon the principle of dignity. She believes that the freedoms given in the capabilities approach are conducive to a dignified life. While the aforementioned impoverished veteran retains their basic human dignity, in Hayek’s society, their dignity has been violated. The social and economic conditions in which they find themselves are not conducive to living a dignified life. They do not have the capacity to strive for their inherent capabilities; without governmental intervention, it would be nearly impossible to do so. In a society in which dignity is valued, dignity “[would] dictate policy choices that protect and support agency, rather than choices that infantilize people and treat them as passive recipients of benefit” (30). Just because one is free from coercion, doesn’t mean they have the freedom to pursue their own aims, as a Hayekian might suggest. Recognizing freedom as only the absence of subjection to another's will is insufficient, as there still exists constraints towards pursuing one’s ends regardless of the actions of another. Socioeconomic standing plays just as much a part in freedom as the absence of coercion. A decision must be made then, if sacrificing a little bit of freedom for coercion is a worthy trade for the freedom for one to have the power to pursue their own aims. I believe that both are necessary for free society.

Conclusion

Hayek’s philosophy concerning freedom from coercion in law produces a promising foundation for a free society; freedom from coercion is a good thing. However, the way in which Hayek defines coercion leaves much to be desired. Because of the critical flaws which I have noted in section II, an enactment of his theory would have potentially devastating consequences on contemporary society. The abstractness, contradictions, and general lack of clarity associated with his definition of coercion presents a weak foundation for a state’s laws. Section IV’s proposition of an additional freedom to is an important aspect of freedom as a whole; Hayek’s concise definition of freedom is incomplete in this regard, in that it overlooks more complex and important issues that deserve to exist hand-in-hand with freedom from coercion in a more holistic conception of the phrase.

Works Cited

1. Hayek, F. A. Constitution of Liberty. University of Chicago Press, 2011.