Chapter 2

LOCKE’S LIBERTARIAN LEGACY

Libertarian thought and antecedent forms of classical liberalism have often accorded centrality to a cluster of ideas derived from John Locke (1689): that individual rights in general and property rights in particular are moral or “natural,” finding their justification and authority outside or prior to their recognition by political or legal actors; that political, coercive government derives its legitimacy from the (often tacit or imputed) consent of the governed; that such consent is given (if at all) for the purpose of the protection of those prior rights; and thus political governing bodies may therefore not violate individual rights without losing their legitimacy.

Lockean rights, and the impermissibility of their violation, were of course central to the canonical statement of libertarianism in academic political philosophy, Robert Nozick’s Anarchy, State, and Utopia, although Nozick offered an alternative to contractarian theories of legitimacy. But Nozick has hardly been alone in seeing libertarian theory as founded on Lockean premises or in attempting to build a more complete and satisfactory theory on such premises. James Buchanan’s (1975) effort to deploy social contract theory as a way to build a libertarian political philosophy “between anarchy and leviathan” treats Locke’s own effort as unsuccessful but, it seems to me, offers an attempt to succeed at Locke’s enterprise (not at Hobbes, Rousseau’s, or Kant’s, for example). Richard Epstein (1985) has sought to repair and rehabilitate Lockean theory as the cornerstone for property rights and a libertarian theory of the limits of state action. Jan Narveson (1988) explicitly sought to join Nozick’s neo-Lockean theory of property rights to David Gauthier’s adaptation of social contract theory in order to build a libertarianism with proper foundations. Randy Barnett (2000) puts the Lockean consent-contract theory along with natural-rights theory at the center of his justification of the authority of the constitutionally limited state. The economist Murray Rothbard, whose popularized systematic libertarian doctrine has been highly influential outside the academy, was a theorist of self-ownership and of natural property rights grounded in a labor theory of acquisition. He was clear that his doctrine built on, while radicalizing, Locke, calling the Second Treatise “one of the first systematic elaborations of libertarian, individualistic, natural-rights theory” and calling attention to “the similarity between Locke’ s view and the theory set forth below” in his book The Ethics of Liberty (1982: 20).1

Outside the academy, the Lockean combination has featured prominently in American liberal individualistic rights theory from the Declaration of Independence and Thomas Paine’s Rights of Man onward. The strand of rights theory that developed into anarchism, including Henry David Thoreau and Lysander Spooner in the nineteenth century through to Rothbard and his followers in the twentieth, often accepted the structure of these Lockean positions while denying that consent has ever actually been given or that coercive government is compatible with the non-violation of rights, thus concluding that government is illegitimate. Indeed, the idea that there is something distinctively friendly to libertarian thought in American intellectual and political culture is hard to distinguish from the idea that there is something especially Lockean about that culture. While Louis Hartz’s (1955) claim that American political thought was hopelessly mired in a Lockean liberal–individualistic consensus has by now been soundly rejected by decades of scholarship noting the importance of civic republican (Bailyn 1968; Wood 1969; Pocock 1995) and ascriptively nationalistic traditions, it is still generally accepted that there was a crucial Lockean liberal component to the political thought of the American Revolution and Founding (Zuckert 1996; Kramnick 1990), and that it has been an important source for American individualism, rights theory, and anti-statism in the centuries since.

The priority given to Lockean rights and consent theory in American liberalism, and its libertarian variant, is anomalous in some important ways compared with the classical liberal tradition elsewhere. In Britain, the Lockean ideas that did so much to legitimize the Glorious Revolution became gradually less central to Whig proto-liberal thought over the course of the eighteenth century. This was of course in part because the decades of Whig ascendancy in government discouraged Whig interest in revolutionary principles. To those who thought of the House of Commons as the manifestation of the people’s consent, its security and eventual primacy after 1688 meant that “consent” ceased to be a concept with any critical purchase; it could no longer ground limits on state power. None of the leading classical liberals of the eighteenth-century European Enlightenment—Montesquieu, Smith, and Hume among them—subscribed to any variant of social contract theory. Hume (1985 [1748]) mocked the lingering attachment to Lockeanism among unphilosophical Whigs. Adam Smith (1982 [1763]: 402) flatly denied that political obligation was grounded in Lockean consent—“this is not the case”—and drily noted that the doctrine was “peculiar to Great Britain” yet legitimate governments cover the world, ruling many who have no thought of having consented.

But Whig political thought in America had branched off from that in Britain. Without the push factors of political and religious turmoil that had characterized political life in the 1600s, migration from England to America slowed considerably in the 1700s, encouraging a political divergence. There were other reasons as well. American colonies really had been founded at discrete moments in recent historical time, with original charters, some of them compacts among original colonists. Moreover, the equation of pre-colonization America with the state of nature resonated, even beyond the ideological cover it provided for the expropriation of Indian lands (Tully 1993).

Much of the impetus for eighteenth-century social thought in Europe was provided by the rise of modern commercial society and the accompanying (so it was thought) increased politeness of manners. The English settler colonies in North America, while thoroughly enmeshed in Atlantic trade networks, were, in the language of the day, rude by comparison—not advanced in manufacturing, finance, dense local commerce, or politesse. Montesquieu and the thinkers of the Scottish Enlightenment also sought to understand “police”: the vast array of everyday policymaking and administration that the British and French states were increasingly occupied with in their governance of large populations with complicated economies. To the American colonists, Locke’s basically juridical account of government continued to seem sufficient. And, of course, Locke provided crucial intellectual support for the Revolution when it came, in a way that had lasting influence.

In the remainder of this essay, I will offer reasons why this pervasive Lockeanism is a problem for (both academic and popular) libertarianism. These are something much less than a refutation; the various configurations and adaptations of Lockean ideas in various versions of libertarian and classical liberal thought overlap but are far from identical, and it would be implausible that they could all be disproven in one fell swoop. And some of these adaptations of Lockean ideas are very sophisticated and rich accounts of political philosophy; I don’t believe that such accounts tend to be susceptible to simple disproofs. Rather, I mean to offer broad reasons for worry about the dominance of these Lockean accounts and suggestions as to more promising directions for classical liberal theory to develop in. I do not suppose that these abbreviated arguments will persuade committed Lockeans, but I hope that they will open the door to other possibilities.

DISAGREEMENT, DEMOCRACY, AND REALISM

The first set of worries takes inspiration from the turn to what has been called realism in political theory (Williams 2005; Galston 2010) and closely allied attempts to take seriously disagreement about rights and justice as a basic feature of political life (Waldron 2000) and the crucial need for partisan contestation as a feature of democratic life (Rosenblum 2008). In overlapping ways, these theories have suggested the need to distinguish more sharply than is done in traditional rights theory and justice theory between one’s normative theory of the better policies for a political society to pursue and one’s normative theory of the range of policies that may legitimately be pursued by a political society characterized by deep and enduring disagreement over questions of rights. As Williams put it in an influential formulation, some have thought that only subordinating politics to morality was compatible with having serious normative views about right and wrong in political life. Against that “political moralism,” he offers a “political realism.” Realism’s distinctive treatment of disagreement

does not mean that we throw our political convictions away: we have no reason to end up with none, or with someone else’s. Nor does it mean that we stare at our convictions with ironical amazement, as Rorty suggests. But we do treat them as political convictions which determine political positions, which means, for one thing, that we acknowledge that they have obscure causes and effects. It also means that we take certain kinds of view of our allies and opponents. Even if we were utopian monarchs, we would have to take into account others’ disagreement as a mere fact. As democrats, we have to do more than that. But remembering the points about the historical conditions, we should not think that what we have to do is simply to argue with those who disagree: treating them as opponents can, oddly enough, show more respect for them as political actors than treating them simply as arguers—whether as arguers who are simply mistaken, or as fellow seekers after truth. A very important reason for thinking in terms of the political is that a political decision—the conclusion of a political deliberation which brings all sorts of considerations, considerations of principle along with others, to one focus of decision—is that such a decision does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost.

(2005:13, italics in original)

Lockean premises make it very difficult to treat libertarian conclusions as positions to be advocated for within ongoing political life. This is a charge that has been made against other liberal theories of justice as well (Walzer 1981; Honig 1993), but Lockean views seem especially vulnerable to it (Bellamy 2007: 147–8). The Lockean variant of libertarianism doesn’t only offer a substantive theory of justice that stands apart from democratic political outcomes. It also seems to pose a stark choice: a political system that fully respects individual rights in a way that makes libertarianism politically triumphant from the outset; or a political system that is illegitimate, making contestation within it illegitimate as well. In its most austere versions, rights-based libertarianism treats very nearly all political decisions as either obligatory—the provision of affirmative protection for rights of life, limb, liberty, and property—or prohibited, because they rely on coercively extracted resources to support any activity other than morally mandatory rights protection and so violate rights. And since state legitimacy rests on the hypothetical agreement to protect rights of life, limb, liberty, and property, a state that violates them undermines its own legitimacy. What Williams terms the “Basic Legitimation Demand” is collapsed entirely into the moral category of preferred political outcomes.

Some critics (Mulholland 2012) have charged that bourgeois liberalism sociologically inclines toward authoritarianism; the imperative to protect property rights and to defend existing social orders against socialist threats has repeatedly inclined liberals further away from democracy than their principles would seem to dictate. This extends into a long-term diagnosis, a worry that Benjamin Constant (1819) expressed: that those who value the secure enjoyment of modern individual liberty will be all too willing to believe Caesarist or Bonapartist promises to maintain public order rather than take the risk of defending their values in competitive politics. This sociological worry is not quite the same thing as the anti-political temptations of liberal political philosophy described in the previous paragraph (Constant was hardly faced with a French middle class filled with Lockeans), but they overlap at the point of a desire to insulate questions of property ownership and economic policy from politics.

Now, Locke himself knew that ongoing politics couldn’t really be a matter of doing nothing but enforcing pre-political rights. Depending on how one reads the Second Treatise, it can appear that such rights are supreme; or that the majoritarian elected legislature engaged in lawmaking is supreme; or that the prerogative-wielding executive able to act outside the law is supreme; or some combination of these, chasing each other around in an intellectual circle. His account of the legislature’s juridical and interpretive task of assessing and specifying who has what rights does not suggest that the legislature thereby violates them. The executive’s task of promoting the common good and public safety, even when it requires acting outside and against the law, likewise does not constitute a violation of rights. Rather, both legislative and executive action are the stuff of legitimate government to which the founding contractors consented or would have consented. This suggests that Locke envisions a great deal of normal politics that he does not detail.

That does not mean, however, that there is a simple mistake or misreading involved in libertarian uses of Locke as the foundation for a kind of liberal rights theory that is hard to reconcile with ongoing political disagreement and contestation. In his version of social contract theory, the decisive step is the formation of a people. Some subset of humanity unanimously agrees to do so, and that unified people is henceforth normatively fundamental. It chooses a government, and if the government exceeds its legitimate bounds, that unified people regains the authority to remove it and institute another. It is worth noting that Locke never envisions the people as being dissolved; there is no return to the initial state of nature of disunited individuals.

That image of peoplehood is, at least, proto-nationalistic. Locke never clearly tells us why or how this portion of humanity comes together as a people and knows that it is distinct from that, leaving a logical gap that would eventually be filled by Rousseau’s explicit nationalism. Locke’s offhand reference to when “the several communities settled the bounds of their distinct territories” (1988 [1689]: 299) cannot do the work; the “communities” must already exist as bounded peoples. Instead, he seems to take for granted that something “a people” is something like “England”—a community that could be governed by a modern state. And for his theory to cohere, that “people” must not only be unanimous at its founding but remain so morally and politically unified that it is capable of acting corporately in a spontaneous way. That can’t help but be in tension with the reality of ongoing political disagreement. The generation of American intellectuals and politicians who had been most influenced by Locke at the time of the Revolution was deeply hostile to the emergence of organized ongoing political parties. The assertion that one speaks on behalf of an organic unified “people” remains a feature of the populist anti-statism that is sometimes conflated with libertarianism in American political culture. And the symbolic affirmation of contract and consent theory in official American life have much the same tone, from “we the people” to the “one nation, under God, indivisible” named in a ritual of supposed consent giving.

However we think of this impulse—organicist, nationalist, holistic, anti-political—it is a temptation faced by many political views. In many countries in the twentieth century, there was a hard and self-conscious process of learning among both social democrats and conservatives that stable decent constitutional democracy depended on both groups abandoning the idea that they were the one true voice of the one undifferentiated people. We now know what the American founders did not: There is no democratic government in a large society without organized partisan contestation. The belief in some organic pre-political unity is thus a barrier to enjoying the goods of constitutional democracy, giving rise to the urge to characterize dissent as treason, divergent views as (e.g.) “un-American.”

Both intellectually sophisticated and American populist variants of libertarian liberalism have been slow to learn this, and I think that their background Lockeanism has something to do with the reason why. They have been slow to accept losing, to accept seeing policies enacted that are disagreeable on one’s best account of liberty without giving in to an account of the existing state as an illegitimate band of armed thugs with which one is in a constant condition of undeclared war. There is something of course perverse about political movements that never win and yet, amidst all their theories and ideas of various levels of sophistication, find no way to understand losing. There is something well beyond perverse about responding to losing by insisting on the need for extraordinary victories: “Since we cannot win in ordinary politics, we must enact constitutions and constitutional rules that forbid any policy outcomes but ours”—as if constitutions are made outside of political life, as if the super-majority required for constitutional enactment or amendment is easier to come by than the plurality required to win some elections. These are, I think, among the perversities of a libertarianism founded on Locke and the Lockean social contract.

Relatedly: Contract or consent theory in general and Lockeanism in particular conflates questions of legitimacy, purpose, function, and origin in thinking about the state to the detriment of clear thought about any of them. States did not arise out of decisions to be governed and certainly not from all-at-once decisions. The variation across time and space in whether people are governed by states—say, the variation between early modern Europeans and either medieval Europeans or most non-Europeans prior to imperial colonization—has nothing to do with this kind of an act of will. Stateness ebbs and flows as a characteristic of social organization for reasons having to do with wealth and productive power, changes in financial, military, and organizational technology, and even local geography (e.g., mountainous regions resist stateness; Scott 2009).

Recognizing this should be attractive to libertarians for at least two reasons. One is that they are receptive to such social explanations in other domains, rejecting decisionism as a way to account of the origins of markets, industrial capitalism, law, language, and other complex phenomena. Libertarian social theory has been deeply influenced by the idea of “spontaneous order” associated most famously with the Scottish Enlightenment and with F. A. Hayek (about whom more will be said below). Such theories provide the intellectual resources with which to resist the common temptation to think that complex social phenomena must have been created and authorized by a decision-making state. The rejection of decisionism as a mode of explanation also allows its rejection as a mode of legitimation. The spontaneous order theorist needs no historical or hypothetical contract with which to explain the emergence of, say, property, and so also understands the mistake in asking whether those who created it had the right to do so. The asymmetry involved in continuing to treat the state itself in Lockean terms while understanding other social phenomena with Smithian tools is, to say the least, anomalous.

LIBERTY AND LEGITIMACY

Second and more important, that conflation among legitimacy, purpose, function, and origin encourages (and depends on) an unhealthy identification of the ruled person with the rules and rulers set over them. The contractarian thought “rule, in order to be morally permissible, must be done with the consent of the ruled and therefore in a sense cease to be rule at all” is logically compatible with the thought “and no rule is legitimate,” which many libertarian anarchists have embraced. But when states do not vanish in a puff of logic upon their illegitimacy being demonstrated, a very different thought becomes almost irresistible to humans, social creatures that they are, deriving comfort from the existence of stable rules and structures. It is that we have consented to the rules set over us, and that there is therefore no loss of freedom in them. The ultimate function of social contract theory in the world, in the face of persistent political rule and of the natural human urge to make peace with it, is as Rousseau saw it:

Man is born free, and everywhere he is in chains. One believes himself the others’ master, and yet is more a slave there. How did this change come about? I do not know. What can make it legitimate? I believe I can solve this question.

(1997 [1762]: 41, italics added)

These lines have become so familiar as to become almost invisible, but there is something remarkable about them. Rousseau does not even mention the possibility of breaking the chains, which is presumably what those who value freedom should want. His task is instead to make it—the fact that man is everywhere in chains—legitimate. That paradoxical accomplishment is precisely what social contract theory offers, and Rousseau’s famously paradoxical ways of putting the solution—such as “forced to be free” 1997[1762]: 54)—are already implicit in Locke’s account.

Social contracts offer answers to the questions “what authorizes a state to rule?” and “what grounds the obligation to obey states?” Given the rarity of voluntary and explicit consent and given that states rule everyone in a territory, voluntary and explicit consent can’t suffice to provide those answers. Social contract as a doctrine of legitimation thus inevitably, one way or another, imputes consent to those who haven’t given it. In its insistence that no one may be governed against his or her will, it ends by insisting to those governed that they have really willed it.

Contractarianism therefore forces us to choose between a fundamental illegitimacy of political rule—a contract once broken is no contract at all—and a generalized imputation of consent such that rule doesn’t burden our liberty. If this is the choice, the contest is one that libertarianism, or liberal theories of freedom generally, cannot win. Of course it has not won in the intervening centuries. Instead, one fiction or another—a state’s supposed identity with a nation that chooses it, or its supposed creation by popularly enacted constitutionalism, or its supposed organization by democratic elections—is generally used to impute generalized consent and to make dissent, disagreement, or resistance to laws appear illegitimate.

I mentioned above the difficulty in treating Lockean libertarianism as a position within ongoing political life. We now see why more clearly. The contractarian syllogism that concludes with “we have all consented to every law” tends to foreclose complaints against laws on grounds of freedom, and such complaints must form part of the core of a libertarian politics. The alternative “we have consented to no law, and thus are in a moral state of war with the state” is at least individualistic and free from the imputation of choices that haven’t been made, but is difficult to sustain and impossible to reconcile with ordinary political life among fellow citizens who disagree. One way or another, the Lockean has great difficulty saying: “these laws violate my best understanding of liberty, and I have not consented to them; but such is the stuff of losing in politics, and I owe my fellow citizens with whom I disagree as well as the institutions of constitu tional democracy enough respect to just keep arguing and contesting.” Williams noted the political moralists’ difficulty in treating one’s opponents’ loss in politics as meaning only that they have lost, not that they were wrong. What I am suggesting here is related: the difficulty in taking the view that one’s own side can lose, with the possibility of contestation in a legitimate process surviving until another day.

Social-contract theory—Locke very much included—teaches us to think that it is the normatively normal condition of the world that my will is reflected in every rule I follow. The same is true for you and him and her. This must mean that our real wills are essentially united, if we are to live as neighbors under common rules; that alone should be enough to make an individualist nervous about the approach. But it seems to me that an individualist, and especially one who understands impersonal social phenomena that do not arise out of deliberate decision, ought to reject the thought even independently of the worry about unity. The state is a thing alien to me; politics is something that happens to us. Social life is like that; the market price for the goods or talents I have to sell is also something external to us. We can and do respond to these external facts, adjusting our lives to them and around them as best we can and sometimes seeking to change them. (I might seek to increase market demand and thus prices for what I have to sell by persuading others of its merits.) But we don’t just insist on an identification between the individual will and the condition of the world. We morally and psychologically tolerate the friction, the gap between who I am and what world I inhabit. The insistence on eliminating that gap cannot ultimately be good for our sense of individuality.

I have argued elsewhere (Levy 2017) that the natural law tradition that eventually developed to include modern natural-rights theories such as Locke’s is built on a sense that our moral, legal, and political lives tend toward a well-ordered harmony and so encourages a mindset in which we infuse political society with more moral meaning than we should. There I encourage a turning away from Aquinas and the natural-law tradition toward Augustine, who fits more comfortably with the ideas now associated with realism in political theory. He teaches that the disjuncture between our moral selves and political life is normal and to be expected; he serves as an antidote to the temptation to attribute deep moral legitimacy (such as that acquired through consent) to political life. We need not choose between anarchy and falsely imputed consent, on this account. We can reconcile ourselves to political societies that don’t sit on some deep foundation of moral legitimacy but can be better or worse in their moral conduct.

COMMERCIAL SOCIETY AND THE HAYEKIAN ALTERNATIVE

Finally, there is a crucial difference between a Lockean emphasis on ownership and the kind of emphasis we find in Montesquieu, Hume, Smith, and Constant on commerce and exchange. At first glance, this might look like a merely semantic point; after all, I must own something before I can sell it, and once I buy something new, I own it. Hume gave stability of possession equal billing with just transfer among the basic elements of justice, and indeed, Locke’s theory of property clearly allowed for its transfer and exchange.

But Locke was not fundamentally a theorist of commercial society in the way Montesquieu and his Scottish followers were, and ownership by itself has a static emphasis that is really alien to libertarianism, and liberalism more generally, at its best. As property law was liberalized in the late 18th and early 19th century, first in America and then elsewhere, the crucial change was not securing land ownership but something nearer the reverse: abolishing entail and primogeniture so that more land might enter commercial exchange more easily.

The difference in emphasis has always rhetorically favored liberalism’s critics, and not only for the obvious (but true) reason that a politics of ownership sounds like a politics of owners. It has encouraged the unfair and confused idea that liberalism is an asocial or antisocial theory, an atomistic doctrine that is happiest when our lives most resemble that of (pre-Friday) Robinson Crusoe (Taylor 1985). Generations of attempts by those intellectually committed to commercial society to stress that it is an order of widespread interdependence, an order in which the division of labor demands cooperation on a massive scale, have been frustrated by the image of the rights-bearing individual standing alone on his well-fenced land (and, in the American case, protecting its boundaries with a shotgun and plenty of ammunition.)

The most important twentieth-century resource for a non-Lockean alternative remains the work of the resolutely anti-contractarian F. A. Hayek, who was precisely an advocate of this commercial society understanding. He self-consciously placed himself in intellectual descent from Montesquieu and the Scottish Enlightenment; he at first proposed to name what became the Mont Pelerin Society after the decidedly non-contractarian nineteenth-century liberals Tocqueville and Acton. Tellingly, his political theory is substantially unconcerned with the legitimation problem to which social contract theory is supposed to provide an answer. He asks what makes a political order better or worse, freer or less free, more or less conducive to desirable social features. There is a theory of sound law in Hayek, but there is not, I think, a theory of legitimate government—by which I mean also that there is no theory of illegitimate government. The choice between states legitimated by contractarian fictions of consent and a normative anarchism motivated by showing consent to be a fiction, and thus that states are illegitimate, is of no apparent interest to him, any more than it was to his heroes from Burke to Smith to Acton. He is not a theorist of consent, of natural property rights, or of the legitimacy of the state. Instead—like Smith—he is a theorist of social change over centuries, which includes the emergence of the modern Weberian state.

While aligning himself with Locke’s Whig politics and his interest in the separation of powers and the rule of law, Hayek admits that “it is mostly in his wider speculations about the philosophical foundations of government that his original contribution lies.” “Opinions,” he drily continues, “may differ about their value” (2011 [1960]: 252).

Hayek’s commitment to social explanations grounded in emergent phenomena of course grew over time, culminating in The Fatal Conceit (1988). Critics such as James Buchanan rightly saw that this entailed a rejection of the whole contractarian structure of argument and objected:

Some of us who share much of Hayek’s vision cannot take the ultimate step here, which seems to require a faith in the beneficent workings of the evolutionary process. Let us acknowledge, with Hayek, that our civil order may crumble from an over-extension of ill-advised attempts at rational reconstruction of our rules. But those of us who are what Hayek classifies as rule rationalists (along with John Locke) find our whole raison d’être, as political economists-cum-social philosophers, in the conviction that humankind can, indeed, construct, maintain, and improve the procedural framework within which the spontaneous order of the market can be allowed to emerge. (Buchanan 1988/89: 3)

I disagree, of course, and think that Hayek’s consistent rejection of “rationalist constructivism” offers the beginning of a better foundation for libertarian social thought and politics. But it is only a beginning. Hayek remains committed to the Lockean–liberal unease with political contestation, indeed enough so as to occasionally slip toward its legitimation myth even as he firmly rejects contractarian explanations. In explaining that elected branches of government need not hold unlimited power even though they are institutionally superior—that is, in denying the Westminster theory of parliamentary sovereignty—he writes, “its power may be limited, not by another superior will but by the consent of the people on which all power and the coherence of the state rest. If that consent approves only of the laying down and enforcement of general rules of just conduct, and nobody is given power to coerce except for the violent enforcement of these … even the highest constituted power may be limited.” Under such arrangements, “the consent on which the unity of the state and therefore the power of its organs are founded may only restrain power but not confer positive power to act” (1981: 3–4). The essential unity of the people acting as a pouvoir constituant is a story that even a committed anti-contractarian finds it difficult to do without altogether.

The work from which this passage is drawn, volume 3 of Law, Legislation, and Liberty (LLL), is as explicit an attempt as any in the modern classical liberal canon to prescribe a constitution in which liberal outcomes are mainly ensured ex ante by a properly written constitution, free from the rough and tumble of partisan contestation between coalitions of interest groups. The latter has its place in the selection of a government and in the delivery of an annual budget but not in legislation properly so-called, the articulation of general rules of just conduct. This distinction between lawmaking and governing is one of the key contributions of the three-volume LLL as a whole, and Hayek shows its importance. But the attempt to find an extra-political and constitutionalized secure foundation for the former, one that rests on a people allegedly willing in a unified way, leaves his theory still far too much in the grip of Lockean mistakes.

A hint toward a better path forward had been offered in Hayek’s earlier Constitution of Liberty, which more strongly resisted the temptation to constitutionalize or settle in advance reasonable contestable political questions.

“There are many values of the conservative which appeal to me more than those of the socialists; yet for a liberal the importance he personally attaches to specific goals is no sufficient justification for forcing others to serve them. I have little doubt that some of my conservative friends will be shocked by what they will regard as ‘concessions’ to modern views that I have made in Part III of this book. But, though I may dislike some of the measures concerned as much as they do and might vote against them, I know of no general principles to which I could appeal to persuade those of a different view that those measures are not permissible in the general kind of society which we both desire. To live and work successfully with others requires more than faithfulness to one’s concrete aims. It requires an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends” (2011 [1960]: 524).

To the tasks of freeing libertarianism from its Lockean baggage—of articulating a libertarianism or classical liberal political program that can embrace constitutional democracy while contesting within it, that can accept losing, that can see the difference between the individual consenting will and the reasonable requirements of living amongst people who disagree—Hayek made valuable initial contributions; but from them, he then turned aside. There, much more remains to be done.