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LAW, LIBERTY AND STATE Hayek,OakeshottandSchmittareassociatedwithaconservativereaction to the ‘progressive’ forces of the twentieth century. Each was an acute analystofthejuristicformofthemodernstateandtherelationshipofthat formto theideaoflibertyunder asystemofpublic,general law.Hayek hadthehighestregardforSchmitt’sunderstandingoftherule-of-lawstate despiteSchmitt’shostilitytoit,andheowedthedistinctionhedrewinhis ownworkbetweenapurpose-governedformofstateandalaw-governed form to Oakeshott. However, until now, the three have rarely been considered together, something which will be ever more apparent as politicaltheorists,lawyersandtheoristsofinternationalrelationsturnto thefoundationaltextsoftwentieth-centurythoughtatatimewhendebate aboutliberaldemocratictheorymightappeartohaverunoutofsteam. daviddyzenhausisProfessorofLawandPhilosophyattheUniversity ofTorontoandaFellowoftheRoyalSocietyofCanada. thomaspoole isProfessorofLawattheLondonSchoolofEconomics andPoliticalScience. LAW, LIBERTY AND STATE Oakeshott, Hayek and Schmitt on the Rule of Law Edited by DAVID DYZENHAUS AND THOMAS POOLE UniversityPrintingHouse,CambridgeCB28BS,UnitedKingdom CambridgeUniversityPressispartoftheUniversityofCambridge. ItfurtherstheUniversity’smissionbydisseminatingknowledgeinthepursuitof education,learningandresearchatthehighestinternationallevelsofexcellence. www.cambridge.org Informationonthistitle:www.cambridge.org/9781107093386 ©CambridgeUniversityPress2015 Thispublicationisincopyright.Subjecttostatutoryexception andtotheprovisionsofrelevantcollectivelicensingagreements, noreproductionofanypartmaytakeplacewithoutthewritten permissionofCambridgeUniversityPress. Firstpublished2015 AcataloguerecordforthispublicationisavailablefromtheBritishLibrary. LibraryofCongressCataloging-in-PublicationData Law,libertyandstate:Oakeshott,HayekandSchmittontheruleoflaw/editedby DavidDyzenhaus,ThomasPoole. pagescm Includesindex. ISBN978-1-107-09338-6(Hardback) 1. Ruleoflaw.2. Oakeshott,Michael,1901–1990. 3. Hayek,FriedrichA.von(FriedrichAugust),1899–1992. 4. Schmitt,Carl,1888–1985 I.Dyzenhaus,David,editor.II.Poole, Thomas(ThomasM.)editor. K3171.L3952015 3400.11–dc23 2014050248 ISBN978-1-107-09338-6Hardback CambridgeUniversityPresshasnoresponsibilityforthepersistenceoraccuracyof URLsforexternalorthird-partyinternetwebsitesreferredtointhispublication, anddoesnotguaranteethatanycontentonsuchwebsitesis,orwillremain, accurateorappropriate. CONTENTS List of contributors vii 1 Introduction 1 david dyzenhaus and thomas poole 2 The mystery of the state: state concept, state theory and state making in Schmitt and Oakeshott 10 nehal bhuta 3 Law as concrete order: Schmitt and the problem of collective freedom 38 hans lindahl 4 Nomos 65 martin loughlin 5 Carl Schmitt’s defence of sovereignty 96 lars vinx 6 Schmitt, Oakeshott and the Hobbesian legacy in the crisis of our times 123 david boucher 7 The mystery of lawlessness: war, law and the modern state 153 thomas poole 8 Reconfiguring reason of state in response to political crisis 185 duncan kelly 9 The rules of the game: stochastic rationality in Oakeshott’s rule-of-law theory 214 erika a. kiss v vi contents 10 Dreaming the rule of law 234 david dyzenhaus 11 What, if anything, is wrong with Hayek’s model constitution? 261 jan-werner mu¨ller 12 Hayek and the state 281 chandran kukathas 13 Localandglobalknowledgeintheadministrativestate 295 adrian vermeule Index 328 CONTRIBUTORS nehal bhuta ProfessorofInternationalLaw,DepartmentofLaw,EuropeanUniversity Institute david boucher Professor of Political Philosophy and International Relations, Cardiff UniversityandSeniorAssociateResearcherintheDepartmentofPolitical Science, University ofJohannesburg david dyzenhaus Professor of Law and Philosophy, University of Toronto duncan kelly University Senior Lecturer, Department of Politics and International Studies and Fellow of Jesus College, Cambridge University erika a. kiss AssociateResearchScholar,DirectoroftheUniversityCenterforHuman Values Film Forum, University Center for Human Values, Princeton University chandran kukathas Chair in Political Theory, Government Department, London School of Economics hans lindahl Professor of Legal Philosophy, School of Law Tilburg University martin loughlin ProfessorofPublicLaw,LawDepartment,LondonSchoolofEconomics vii viii list of contributors jan-werner mu¨ller Professor of Politics, Department of Politics, Princeton University thomas poole Professor of Law, Law Department, London School of Economics adrian vermeule Professor of Law, Harvard Law School, Harvard University lars vinx Assistant Professor, Department of Philosophy, Bilkent University 1 Introduction david dyzenhaus and thomas poole The twentieth century may be said to have witnessed the apotheosis of the state. The state became capable of operating on an unprecedented andpotentiallyall-encompassingscale.Itcouldprovideforitssubjectsin a previously undreamt of manner, taming Fortuna to the extent that the vicissitudesoflifethatatanypreviousstageofhumanhistorywouldhave meant their demise might now be treated as mere inconveniences. But thestatecouldalsofighttotalwarsonanintercontinentalscale,requiring vast sacrifices from its populations.1 And, as the century progressed, the state also showed itself capable of controlling its subjects in ways that were deeply troubling to liberals who valued above all the freedom of individuals to decide on the good for themselves. The rise of the modern state and the possibilities for liberty within it were staple topics of twentieth-century social and political thought. But the subject also had crucial juridical dimensions that are more commonly overlooked. From the turn of the century onwards, theorists realized that the requirements of the modern state put increasing pres- sure on accepted understandings of law. The dynamism of the new century meant that law, once seen as both relatively settled and stable andprotectiveofindividualliberty,wasnowsubjecttorapid,sometimes dramaticandunpredictablechange.Lawincreasinglybecamesomething made or legislated, connected to functions determined by the organs of the state and as sucha‘positive’ratherthana‘natural’phenomenon. This development not only reinforced general concerns about the demiseofhumanisticvaluesinthe‘MachineAge’,butitalsothreatened the connection that was previously assumed between the law and the 1 HistorianshavebeguntoarguethattheFirstWorldWarinparticularoughttobeseen ‘not merely as a war between European nation states, but primarily as a war of multi- ethnic,globalempires’:seeRobertGerwarthandErezManela,‘Introduction’inGerwarth andManela(eds),EmpiresatWar,1911–1923(OxfordUniversityPress,2014),3. 1 2 david dyzenhaus and thomas poole basic values or mores of the community. And this was occurring at a time when, with other traditional forms of social cohesion losing their force, law was being called upon to do more by way of legitimating the government apparatus. This sense of juristic disorientation was heightened by the specificity of the new functional rule making. As law seemed to become regulation, increasingly a matter of detail and of technique, it became unclear what space remained for the image of law as anchor of basic principles and brake on overweening or arbitrary political action. If the Rechtsstaat is meant to embody general liberal principles, how can it abide a particularistic core? This collection examines the response to the problems of law and liberty raised by the modern state of three of the last century’s greatest thinkers: Carl Schmitt (1888–1985), Friedrich Hayek (1899–1992) and Michael Oakeshott (1901–1990), whose lives almost spanned the entire century.Allwereassociatedwithaconservativereactiontotheprogres- sive forces of their time, although these reactions took very different forms. Their formative experience was the crisis of European society in the inter-war years. Each was an acute, if controversial, analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. They were also influenced by each other’s work, although this occurred as much through the irritant effect one’s thought had on another’s as through more direct or positive means. Hayek had the highest regard for Schmitt’s understanding of the Rechtsstaat, despite considering him to be dedicated to the destruction of that form of state. Schmitt, as Perry Andersonobservedinanessayonthethreethinkers,‘wasneverfarfrom Hayek’smind–standingfortheprimeexampleofaskilledjuristwhose sophistry helped to destroy the rule of law in Germany, yet a political theoristwhosestarkdefinitionsofthenatureofsovereigntyandthelogic of party, at any rate, had to be accepted’.2 Hayek also acknowledged Oakeshott’s influence, notably for the distinction, crucial to his own theory, between a teleocratic(purpose-governed ormanagerial) formof stateandanomocratic(law-governedorjuridical)form.3Oakeshott,for 2 Perry Anderson, ‘The Intransigent Right: Michael Oakeshott, Leo Strauss, Carl Schmitt, FriedrichvonHayek’,LondonReviewofBooks,24September1992;republishedinAnder- son,Spectrum:FromRighttoLeftintheWorldofIdeas(London:Verso,2005),15. 3 F. A. Hayek, ‘The Confusion of Language in Political Thought’ (1967) in Hayek, New StudiesinPhilosophy,Politics,EconomicsandtheHistoryofIdeas(London:Routledge& KeganPaul,1978),89.