Vol.15 No.12 (December 2005), pp.1034-1036

HAYEK AND HUMAN RIGHTS: FOUNDATIONS FOR A MINIMALIST APPROACH TO LAW, by John C.W. Touchie. Cheltenham, UK and Northampton, MA: Edward Elgar Publishing, 2005. 288pp. Hardback. $100.00/£59.95.  ISBN: 1840649569.

Reviewed by Rory O’Connell, Human Rights Centre, Law School, Queen’s University of Belfast. Email: r.oconnell [at] qub.ac.uk

The first point about this book must be that the title does not give an accurate impression of its content. Although certainly the book covers Friedrich Hayek’s thought, it devotes relatively little attention to the topic of human rights. The subtitle is a more accurate description: the book is an effort at elaborating a theory of law, based on Hayek’s writings, and to a lesser extent, insights from other disciplines such as psychology. The book covers such topics as Hayek’s notion of coercion, the rule of law, the role of justice, the difference between negative and positive duties, liberal constitutionalism and human rights.

John Touchie argues that Hayek’s writings are now increasingly relevant in the 21st Century, as there is shift in society from one based on a sense of community towards a more impersonal, complex and specialized society. This shift poses dangers for the control of state power, making Hayek’s concern for the Rule of Law ever more pertinent (p.208). These concerns are certainly plausible, although Touchie could have referred more to others who identify these changes in society and governance.

Most interesting is perhaps the author’s insistence upon a sense of justice that is somehow objective. According to Hayek, this is central to liberalism (a point sometimes disputed by liberals) (p.128). Here Touchie highlights the difference between Hayek and some legal positivists, most especially Kelsen (p.122). He elucidates that, for Hayek, justice as a concept develops over time in social contexts and is not an abstract notion, a “view from nowhere.” Further, justice develops along two tracks – an informal one and an institutionalized legalized form.  Hayek and Touchie warn against the dangers of too great a divergence between these tracks; they should be reconciled (p.133). This reviewer finds the contrast with Kelsen in the chapter on “Justice” informative, but I wonder whether the author might not do better to consider Hayek’s contributions in relation to more recent political and legal writings on justice.

Hayek famously argues against both excessive distributive justice and an excessive reliance on positive duties. Distributive justice and positive duties contain certain dangers that could lead to uncontrolled state coercion and a diminution of individual autonomy. Touchie outlines the different governance properties of negative and positive duties, and this is a very useful exercise, offering more depth than is often the case on the specific problems with positive duties. He rightly points to court cases in the UK and Canada [*1035] indicating the difficulties courts have with positive duties (p.177).

Touchie might usefully have clarified whether Hayek would accept that social and economic rights can be protected by negative duties. UN human rights institutions have noted that this is often the case—e.g. prohibitions on arbitrary dismissal, prohibitions on denial of access to employment, and prohibitions on denial of access to medical care. The author is not resolutely opposed to positive duties but merely warns that they have different governance properties from negative duties (p.174). Although Touchie notes that some courts express difficulties with positive duties, there are judicial precedents the other way. He refers to the Canadian GOSSELIN decision (p.177) but could have balanced this by considering the much discussed South African decision in GROOTBOOM.

Touchie makes it clear that our developed notion of justice requires that certain minimal standards be met, including a set of social and economic rights which could be met in different ways (pp.170, 211). Citing Hayek, he warns against “full blown distributive justice” (p.210). If the prohibition on “full blown distributive justice” means that an excessively interventionist, centrally planned economy is incompatible with human autonomy, then this is not a very contentious point. If this is a warning that certain positive measures have particular drawbacks, then this is a point worth reiterating, though it is already well accepted by other writers—e.g., on the dangers of “materialized law,” see Habermas (1995, at 416).

The book contains a useful discussion of the potent but ambiguous concept of the “rule of law.” Touchie discusses Hayek’s analysis of the rule of law as emerging from power struggles between interest groups at different historical periods (p.45), and he distinguishes between those conceptualizations that view the rule of law as adding a dimension of justice into the law (p.85) and others that emphasize efficiency in the legal system (p.84). Hayek’s insistence on the rule of law is still timely, especially the requirement of the possibility of review. It is noteworthy that the current Government of Hayek’s adopted home, Britain, has consistently shown an inclination to deny judicial review in debates about emergency measures and asylum processes. In this effort, the Government has been stymied by opposition in Parliament.

This fact is both worrying (the Government’s distrust of the rule of law) and heartening (Parliament’s success in insisting on rule of law values). Hayek astutely warned that modern democracies tend to conflate the executive and the legislative power. This is no doubt a serious worry, and rule of law advocates should be pleased at these Parliamentary successes. However this also leads to a criticism of Hayek’s position. Hayek seems to have assumed that legislative action often represented no more than Will, and in particular the Will of the democratic majority (pp.181-182). This he may have contrasted with the more rational development of justice offered by judges. Yet this seems too sharp a dichotomy, and other writers have argued that legislation has its own rationality, even “dignity” (Waldron 1999). [*1036]

In the final chapter, Touchie suggests that rights must not be put into a simple cost-benefit analysis, but that they must have a particular value, while leaving open the possibility that rights may be limited in “narrowly circumscribed circumstances (p.225). This fits well with much of modern human rights law, generally permitting rights to be limited only if it can be demonstrated to be necessary in a democratic society (Canadian Charter of Rights and Freedoms, Section 1; 1996 South African Constitution, Section 36). However more detail would have been welcome. For instance, it would have been interesting to hear the author’s thoughts on so called “non-derogable” rights, to which international law permits no exceptions even in times of war. This has become a pressing issue as some commentators and policymakers have sought to argue that the non-derogable right to be free from torture should indeed be subject to a utilitarian calculus when the overwhelming needs of society intervene.  I would have liked to hear the author’s views on this critical question, much discussed since September 2001.

Touchie does address, but rather too briefly, another important issue in contemporary human rights law, the influence of corporations and other powerful non-state actors. He notes that Hayek was mainly concerned with the power of the state – surely appropriate for one who lived through Hitler and Stalin – and observes that a persistent difference exists between state power and corporate power (p.216). He acknowledges the need to be concerned with the provision of basic needs (p.216) and later suggests that finding a balance between controlling state power and providing for certain material needs is necessary to move forward (234). Power should be decentralized, given the tendencies of members to accept the imperatives of bureaucratic organization even at the expense of conscience (p.215). Touchie urges attention to the different modes of governance that are possible and warns against relying exclusively on law (p.236).

This is a book that offers insights primarily to legal philosophers. Given its title, human rights experts may feel a bit misled, although Touchie’s discussion of the Rule of Law and Negativity should be of some interest.

REFERENCES:

Habermas, Jurgen. 1995. BETWEEN FACTS AND NORMS. Cambridge: MIT Press.

Waldron, Jeremy. 1999. THE DIGNITY OF LEGISLATION.  Cambridge: Cambridge University Press.

CASE REFERENCES:

GOSSELIN v. ATTORNEY GENERAL OF QUEBEC, [2003] 221 D.L.R. 4th 257 [2002] 4 S.C.R. 429 (2002/12/19).

GOVERNMENT OF SOUTH AFRICA v. GROOTBOOM, (CCT11/00) [2000] 11 BCLR 1169 (CC) [2001],10 Butterworths Human Rights Cases 1 84 (2000/10/04).

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© Copyright 2005 by the author, Rory O’Connell.