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«Introduction Even though neither theoretical arguments nor historical evidence provide reasons to believe that the ideals of liberalism may be better ...»

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Viktor J. Vanberg


Even though neither theoretical arguments nor historical evidence provide reasons to

believe that the ideals of liberalism may be better preserved by non-democratic regimes,

one cannot overlook the fact that the growth of the modern democratic welfare state has

been accompanied by growing restrictions on individual liberty.1 Nor can one overlook the fact that the liberal voice is only one among many in the democratic contest of political programs, a voice moreover that is rarely articulated in a principled manner, and hardly ever succeeds to win broad electoral support. Does one have to conclude from such observations that the ideals of the democracy and liberalism are difficult to reconcile or, as it has been put, that there is a “dichotomy between liberalism and democracy”?2 Friedrich A. Hayek (1978c: 142f.) has sought to clarify the relation between the “two

doctrines” by pointing to the fact that they are “concerned with different issues”:

“Liberalism is concerned with the functions of government and particularly with the limitation of all its powers. Democracy is concerned with the question of who is to direct government.”3 And, indeed, if one divides the issues that an inquiry into matters of politics may address into two main sub questions, namely, first, what government should * Viktor Vanberg is a professor of economics at Freiburg University, Germany and Director of the Walter Eucken Institute, Freiburg. He is currently a Resident Scholar at Liberty Fund, Indianapolis whose generous support for work on this paper he wishes to acknowledge. The paper was prepared for presentation at the panel on “Liberty in the Political Institutions of the 21th Century,” MPS 2006 General Meeting, November 5-10, Guatemala.

As Hayek (1978c: 145) notes on the “development of the modern Welfare State”: “Though it should have been possible to achieve many of its aims within a liberal framework, … the desire to achieve them by the most immediately effective path led everywhere to the abandonment of liberal principles …, to a progressive growth of the government controlled sector of the economy and to a steady dwindling of the part of the economy in which liberal principles still prevail.” D. Samet and D. Schmeidler (2003: 214). As the authors (ibid.: 213) note: “The liberal and the democratic principles dominate modern political thought. The first requires that decisions on certain matters rest with the individual and not with society. The second assigns the power of decisionmaking to majorities.” See also Hayek (1960: 164f.; 1967: 161).

do and what its limits should be, and, second, how government should be organized, it is quite apparent that the advocates of liberalism have traditionally focused their attention on the first issue while advocates of democracy have been primarily concerned with the second one. Yet, while this difference in focus clearly accounts for the divergences between the two doctrines, the liberal ideal would surely be interpreted in a too narrow sense if it were thought to be not concerned at all with the issue of how government should be organized, just as the democratic ideal would surely be interpreted in a too narrow sense if it were thought to entirely neglect the issue of what limits to put on the powers of government. In fact, taking my lead from Hayek’s and James M. Buchanan’s thoughts on the subject, the argument that I shall seek to support in this paper is that the basic normative premises on which the ideals of liberalism and democracy are based have clear implications for both of the issues noted, implications furthermore that are in harmony with each other. More specifically, I shall argue that both ideals are founded ultimately on the same normative premise, the principle of individual sovereignty, and that they can be interpreted as complementary applications of that premise.

Liberalism and Private Autonomy When J.M. Buchanan (1995/96) identifies “the liberty and sovereignty of individuals” as the fundamental value premises of liberalism he thereby intends to indicate that individual liberty and individual sovereignty should be regarded as distinguishable normative principles.4 As I suppose, and as I shall explain in more detail below, it is the failure to carefully distinguish between the two principles and to realize that both are constitutive for a consistent liberal outlook at politics that has obfuscated the close relation between the ideals of liberalism and of democracy.

Advocates of liberalism have generally focused on the ideal of individual liberty as “freedom under the law” (Hayek 1960: 153), an ideal that is succinctly captured by the concept of private autonomy. This concept implies the notion of “an assured free sphere” (ibid.: 139) within which individuals are free to choose and to act, and to engage in Referring to the title of his article, “Federalism and Individual Sovereignty,” Buchanan (1995/96: 267) emphasizes that he deliberately used the term “Individual Sovereignty” rather than “Individual Liberty” in order to indicate the difference between, on the one side, individual liberty from political-collective action and individual sovereignty in political-collective action.

voluntary exchange or cooperation with each other as equally free persons.5 Understood as private autonomy individual liberty means, as Hayek (1960: 155) puts it, “that what we may do is not dependent on the approval of any person or authority and is limited only by the same


rules that apply equally to all.” Private autonomy is individual liberty from politics. It finds its limits where the domain of politics begins, i.e. the domain where individuals are not free to choose separately and individually but are subject to collective-political choice. Politics is, as Buchanan (1995/96: 260) notes, “by its nature … coercive; all members of a political unit must be subjected to the same decision.”6 It is this inherently coercive nature of politics that lets a liberalism that concentrates on the ideal of private autonomy naturally focus on the issue of how the political domain may be minimized in the sense of being limited to its essential functions. ‘Private autonomy liberals’ do not all agree on what should be counted among the essential functions that government is needed for, because of their focus on the issue of ‘how much government,’ though, they generally tend to pay little attention to the issue of how government, whatever its functions, should be organized.

And they do the less so the fewer ‘essential functions’ they recognize. At the extreme end of the spectrum of liberal views on governmental functions are anarcho-libertarians who carry the goal of minimizing government to its seemingly logical conclusion.7 As they do not recognize any legitimate role of government, they have nothing to say on the issue of how, from a liberal perspective, government should be organized.8 Hayek (1960: 139): “(T)he ‘rights’ of the individual are the result of the recognition of such a private sphere.” – “The recognition of property is clearly the first step in the delimitation of the private sphere which protects us against coercion” (ibid.: 140).

Buchanan (1995/96: 264): “Political action, regardless of how decisions are made, involves choices that are made for, and coercively imposed on, all members of the relevant political community.” I shall return for a critical comment on the anarcho-libertarian position below. For a critique see also e.g.

D. Godefridi 2005 and R.G. Holcombe 2004. – M. Friedman (1962: 25) expresses the prevailing liberal view on the issue of anarchism when he notes: “These then are the basic roles of government in a free society: to provide a means whereby we can modify the rules, to mediate differences among us on the meaning of the rules, and to enforce compliance with the rules … The need for government in these respects arises because absolute freedom is impossible. However attractive anarchy may be as a philosophy, it is not feasible in a world of imperfect men.” While anarcho-libertarians otherwise like to draw on L. von Mises as their principal source of inspiration,

their vision of a functioning social order without government does not find support in what Mises (1985:

35, 37, 39) had to say on this issue: “We call the social apparatus of compulsion and coercion that induces

people to abide by the rules of life in society, the state: the rules according to which the state proceeds, law:

and the organs with the responsibility of administering the apparatus of compulsion, government. … Liberalism is not anarchism. … The liberal understands quite clearly that … behind the rules of conduct whose observance is necessary to assure peaceful human cooperation must stand the threat of force … It is The limitations of a liberalism that does not address this issue become apparent as soon as one recognizes that there are preconditions for private autonomy to exist. Private autonomy means individual liberty within a framework of rules that must, somehow, be defined and enforced “by some authority that has the necessary power” (1960: 139).

Individual liberty as private autonomy is constituted by, and at the same time limited by, an effectively enforced legal framework9 or, more specifically, by the rules of private or civil law that constitute the “rules of the game” of the Privatrechtsgesellschaft (Boehm 1980; 1989), the civil law society.10 The rules of civil law ensure the “compossibility” of the same liberty for everyone, and they protect the individual sphere of liberty from private encroachment and government intervention.

Private autonomy means autonomy of the individual within the limits of the rules of law, rules that define the content of property rights and that set limits to the freedom of contract. Since systems of private law do change over time and differ in the specific ways in which they define the content of property rights and set limits to the freedom of contract, what “private autonomy” specifically means varies over time and across legal systems.11 The question, therefore, arises of which criterion ought to be used for evaluating the suitability or adequacy of potential alternative legal rules. Evidently such a criterion cannot be derived from the idea of private autonomy itself, because, as argued above, the notion of private autonomy has meaning only relative to a given system of rules and, thus, cannot be used as a standard against which the system of rules that define it can itself be judged.

As noted before, private autonomy is not only defined and limited by the rules of private or civil law it finds its limits as well at the demarcation line that separates the a grave misunderstanding to associate it (liberalism, V.V.) in any way with the idea of anarchism. For the liberal, the state is an absolute necessity.” Hayek (1960: 144f.) speaks of “a private sphere delimited by general rules enforced by the state.” In reference to Böhm’s article on “Privatrechtsgesellschaft und Marktwirtschaft” (“Private Law Society and Market Economy”) Hayek has approvingly noted that Böhm “described the liberal order very justly as the private law society” (Hayek 1967: 169).

Hayek (1960: 229): “The decision to rely on voluntary contracts as the main instrument for organizing the relations between individuals does not determine what the specific content of the law of contract ought to be; and the recognition of the law of private property does not determine what exactly should be the content of this right in order that the market mechanism will work as effectively and beneficially as possible.” – “Nor would it be desirable to have the particular contents of a man’s private sphere fixed once and for all” (ibid.: 139). - See also Hayek (1948: 19): “But if our main conclusion is that an individualist order must rest on the enforcement of abstract principles rather than on the enforcement of specific orders, this still leaves open the question of the kind of general rules we want.” “private” from the “public” realm or, in other words, the civil law society from the state as the domain of collective-political choice. Since this demarcation line may also be drawn in different ways, the question arises again of which criterion should be used for judging where the line should be properly drawn. And here, too, the ideal of private autonomy cannot by itself provide such a criterion, even though, as I shall argue below, it does suggest the kind of criterion that, from a liberal perspective, should be applied to this issue.

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