Murray N. Rothbard vs. the Philosophers - Ludwig von Mises Institute

REVIEWS AND COMMENTS BY MURRAY N. ROTHBARD 69
the von Gneist 19 thesis of “administrative courts” as being
competent to exercise judicial review of administrative agencies;
in thus throwing over the jurisdiction of ordinary courts
on the ground that these courts wouldn’t be expert enough to
judge, Hayek in effect throws over the rule of law and
accepts administrative tyranny. For the reason why ordinary
courts should rule is precisely that they can be governed by a
common libertarian law: that the government should not
infringe on liberty and property; the fact that some other
courts are to be set up on some other basis concedes the
essence of the struggle to administrative discretion. Further,
Hayek also concedes that his rule of law should be breached
in war or other serious emergencies, and even concedes that
this vaunted rule cannot be meaningfully defined.
I have not yet seen Hayek’s final chapters on specific economic
applications, but I can predict that I will have plenty
to complain about there. In the light of this book, we cannot
simply continue to regard F.A. Hayek as a good fellow
who is against coercion, and against egalitarianism, and
favors a reasonable amount of freedom. For any good
aspects are far overshadowed by his predominant tone,
which is this:
We must accept traditional social institutions on
blind faith and without adequate reason; reason is
impotent to discover moral principles or justice,
but to the extent that we can discover merit it is
based on pain, and the free market must violate it;
the argument for freedom rests on ignorance; this
freedom really means equality under the law, which
means general, predictable rules, whatever their
content; laissez-faire is bad because it is wicked
and extreme and tyrannical French rationalism—
19 Rudolf von Gneist (1816–1895) was a German jurist and liberal
politician. He was the author of fundamental works on English
constitutional and administrative law. He had a particularly important
role in the reform of the Prussian administration (1868–1875)
and in building an autonomous administrative justice system in Germany.
See Das heutige englische Verfassungs- und Verwaltungsrecht
(1857) and Englische Verfassungsgeschichte (1882).