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

REVIEWS AND COMMENTS BY MURRAY N. ROTHBARD 73
even looser than I had thought. For not only does he admit
at one point that the rule of law cannot be precisely defined,
and that it must be suspended in emergencies, but he also
would only apply the rule to what Hayek calls “coercive”
activities of the State. There is a vast area of State activity
which Hayek calls “noncoercive” and where the State can
act perfectly legitimately. “Coercive” activities are thus confined
to such direct acts of tyranny as price controls, fixing
production, socialist planning, etc. But a government supply
of a service—such as public housing, etc.—is not considered
coercive, and therefore cannot be opposed on principle
according to Hayek. For such “noncoercive” activities, says
Hayek, the proposed activity must be considered case by
case, ad hoc, in a pragmatic, utilitarian manner.
Furthermore, even such clearly coercive activities of the
government as conscription are not considered really coercive
by Hayek because they are general rules, applying to
everyone in a certain defined category (although, as Hayek
sometimes admits, these categories can be widened and narrowed
flexibly). Everyone knows in advance that he will be
drafted, he can predict it, etc. (Of course, in practice, the
draft is neither universal nor predictable, but that is another
problem.)
Hayek’s devotion to the relatively unimportant rule of
law principle, and his hostility to rationalism, distort his
historical sections so as to make them virtually valueless
(although, as I said above, the footnote references are
most important). Thus, Hayek tries to erect the categories
of the “English tradition” (good) and the “French tradition”
(bad). Jefferson, Paine, Price, etc.—fine libertarians all—
are dismissed hostilely as being in the bad French tradition,
while their direct ancestor, John Locke, is hailed as
a “good” English empiricist. Actually, there was little difference
between them. Condorcet, surely a “bad” French
rationalist by Hayek’s standards, somehow comes out
“good” because he favored a constitution for France and is
therefore supposed to be in favor of the rule of law. And
while favoring the American Constitution, the Bill of