Ed Feser’s central thesis in this piece up at TCS Daily—that Hayek’s thought may provide the best basis for a “fusionist” coalition between libertarians and conservatives, but remains in tension with tenets cherished by both—actually seems plausible enough on the whole. You’d be forgiven for not noticing, though, as over the course of a very long essay, Feser manages to say something badly wrong about once per paragraph. Let’s look at a representative sample.
If [libertarians] allow that [using recreational drugs, watching pornography, engaging in extramarital sex, and so forth] might nevertheless be morally wrong, the conservative can in principle endorse the libertarian program. [….] But as it stands, this particular defense of fusionism is superficial. (I say this as someone who used to endorse it.) For one thing, some influential arguments for libertarianism do not simply imply that behaviors of the sort mentioned ought to be made legal, while allowing the possibility that they are immoral. For example, libertarians who ground their position in moral contractarianism hold that we can be morally obliged to follow only those rules that would be agreed to by all rationally self-interested persons. But not all such persons would agree to rules against drug use, pornography, extramarital sex, etc. It follows, on this view, that such things cannot be regarded even as immoral, much less made illegal. Hence some (though not necessarily all) libertarians motivated by this sort of moral theory are not satisfied merely to legalize the behaviors in question; they want a society in which the traditional moral objections to those behaviors are, while legally tolerated, considered no more respectable or worthy of attention than arguments for creationism or racial segregation. Obviously, conservatives cannot endorse such a program for consigning their views to a cultural ghetto.
As a minor point, one might perfectly coherently be a contractualist about political justice without being a contractualist tout court. Think of Political Liberalism, say, where a bargaining position is used to work up principles to regulate the coercive “basic structure” of society but doesn’t purport to give the content of a comprehensive ethics.
The truly weird thing about this passage, though, is why Feser should imagine it’s relevant for a political fusionism at all whether libertarians “allow that such behaviors might nevertheless be morally wrong.” If you and I are agreed on the principle of a free press, then whether we further agree that “Howl” is a good poem or Faulkner superior to Hemingway is wholly beside the point. If someone suggested that we could not band together in support of the political principle unless I were willing to “allow” that The Sun Also Rises might be better than Absalom, Absalom after all, we would both, I think, be entitled to give that person a very queer look.
The closest thing we get to a hint of an explanation here is the suggestion that (some?) libertarians have “a program for consigning [traditionalist] views to a cultural ghetto.” But… what program? Certainly not any libertarian political program, which would have no part in zoning cultural ghettos. If the thought is that some libertarians might, above and beyond their political activism, try to persuade others not to frown on homosexual relations or heterodox religions, well, certainly they might. But what does that have to do with the price of eggs? Traditionalists will presumably try to persuade people of the opposite, but Feser doesn’t seem to have a symmetrical concern about whether the views of the more permissive-minded libertarians will be ghettoized, and indeed, one price of libertianism is the risk that some of one’s cherished cultural preferences will turn out not to be widely held. In any event, one of the perks of state neutrality on this front is that we need not speak in the singular of a “cultural ghetto,” as though norms didn’t often vary from locality to locality or identity group to identity group within the same political system. There are certainly at least a few reasons to think the contraction of the state could work in favor of the reassertion of more conservative norms, but if Feser wants guarantees, they tend to be hard to come by in the cultural realm.
A long passage follows on natural law theories of rights, Locke’s in particular. Jon Rowe has already got a long and able response to this section, which I’ll happily outsource to him.
Next we get a pair of paragraphs about whether the idea that “virtue should be freely chosen” counts in favor of traditionalists’ forswearing the use of state power to enforce their value sets. Feser allows there’s something to this, but wonders “whether one’s choice should be an inordinately difficult one to make”:
Hence conservatives’ worries about the highly sexualized character of contemporary popular culture, especially youth culture. It is hardly possible for very many freely to choose virtue when the surrounding culture denies that it is virtue at all, and heaps ridicule on those who dare to disagree.
Insofar as this is an argument about children and character formation, the shift from a monopoly public school system to one of parent-controlled education vouchers would do a good deal to make this moot. But note also that the way the argument above is structured, the case for intervention to preserve “virtuous” choice gains strength in direct proportion to the pervasiveness of the objectionable content—which is to say, in proportion with the number of Americans who find it either acceptable or positively appealing. The more popular the “unvirtuous” material is, the stronger the case for prohibiting it, since it is supposed to be an argument against inundation, not mere existence. Whatever these unspecified “legal means” might be, then, they would need to authorize a form of cultural planning that would be at some remove from, and empowered to gainsay, the preferences of majorities of citizens. This is an odd road to be walking for someone who’s about to invoke Hayek.
And speaking of Hayek:
As it happens, Hayek rejected both the “conservative” and “libertarian” labels; he preferred to call himself a “Burkean Whig.” But then, Burke was the father of modern conservatism, and the Whigs were the classical liberal ancestors of contemporary libertarians. So while there are certainly versions of conservatism and libertarianism Hayek would not have endorsed, his own self-description seems to indicate a commitment to fusionism of a sort.
I’ve dealt with this sort of silliness before, but very quickly: In the midst of a long essay explaining why he rejects the substance of the conservative view, Hayek puzzles over what he should call himself. He notes that people have recently started using the term “libertarian” to describe views like his own, but he decides that it “carries too much the flavor of a manufactured term.” His meaning is so clear in the text that the summary “Hayek rejected both… labels“—when in one case it is literally just “the label” he rejects—is either deliberately disingenuous or almost unfathomably obtuse.
We pass through less objectionable stuff on Hayek’s general argument for tradition, though even here there’s a tendency to paint him as the “panglossian” about evolved institutions his critics have sometimes charged him with being. Hayek’s objection was to the wholesale attempts to transform such institutions, redesigning them rationally from the ground up, that he associated with “constructivist rationalism.” He was perfectly happy with the “internal” or “immanent” kind of departures from tradition he associated with “critical rationalism,” and never suggested we should simply accept our cultural patrimony blindly, as-is. This is, indeed, one of the ways he distinguishes himself from conservatives in the aforementioned essay. In any event, we next get this rather stunning assertion:
At the same time, there is nothing in his system of thought that entails the decriminalization of so-called “victimless crimes” like drug use and prostitution.
One is forced to wonder: Has the editor of The Cambridge Companion to Hayek ever actually read any Hayek? Because it is not terribly hard to find passages such as this one, from The Constitution of Liberty:
[W]here private practices cannot affect anybody but the voluntary adult actors, the mere dislike of what is being done by others, or even the knowledge that others harm themselves by what they do, provides no legitimate ground for coercion.
We have seen that the opportunities of learning about new possibilities that the growth of civilization constantly offers provide one of the main arguments for freedom; it would therefore make nonsense of the whole case for freedom if, because of the envy of others or because of their dislike of anything that disturbs their ingrained habits of thought, we should be restrained from pursuing certain activities. While there is clearly a case for enforcing rules of conduct in public places, the bare fact that an action is disliked by some of those who learn about it cannot be a sufficient ground for prohibiting it.
Generally speaking, this means that the morality of action within the private sphere is not a proper object for coercive control by the state.
Granted, he does not come right out and say: “Nobody ought to go to jail for smoking a doobie.” But it is hard to read that as other than a condemnation of “victimless crimes” that flows directly from his general view that human progress is typically best achieved by allowing broad latitude for individuals or small groups to experiment within a neutral framework—a principle that applies no less to Millian “experiments in living” than to entrepreneurship.
In fairness, Feser is not alone in reading Hayek as holding a highly formal view of liberty that entail few or no concrete liberties provided rules are general, abstract, and universally applicable. But as John Gray has explained, this impression falls away on a closer reading. Hayek always speaks of general rules of conduct whose aim is to “prevent unjust action,” defined as “the infringement of the protected domain of one’s fellow men.” His 1973 essay on liberalism makes clear how much, like Kant, he understands quite a number of specific liberties to be entailed by his general principle:
The idea of specially guaranteeing certain fundamental rights, such as ‘liberty, property, security and resistance to oppression’, and, more specifically, such freedoms as those of opinion, of speech, of assembly, of the press, which make their appearance first in the course of the American revolution, is, however, only an application of the general liberal principle to certain rights which were thought to be particularly important and, being confined to enumerated rights, does not go as far as the general principle. That they are merely particular applications of the general principle appears from the fact that none of these basic rights is treated as an absolute right, but that they all extend only so far as they are not limited by general laws. Yet, since according to the most general liberal principle all coercive action of government is to be limited to the enforcement of such general rules, all the basic rights listed in any of the catalogues or bills of protected rights, and many others never embodied in such documents, would be secured by a single clause stating that general principle. As is true of economic freedom, all the other freedoms would be secured if the activities of the individuals could not be limited by specific prohibitions (or the requirement of specific permissions) but only by general rules equally applicable to all.
There is probably some wiggle room here, as (again) Hayek never does directly address these issues. (Though in a footnote to the passage from Constitution cited above, he does offer the example of legislation barring homosexual acts as the type of thing he means to exclude.) But to suggest that there is “nothing” in his thought that can perfectly naturally be read as yielding this conclusion is only to admit that one has not looked very hard.
ADDENDUM: Feser replies in the comments below; on the off chance you haven’t utterly ODed on this topic by the time you’ve slogged through all of this stuff so far, I’ll try to put up a reply tomorrow.