the spectacle of [Chrysler] creditors being stripped of their legal rights in favor of a labor union with which the president is politically aligned does little to attract private capital at a time when the government and many companies need these investors the most.
All sorts of commentators — Todd Zywicki, George Will, Lee Cary, Robert Robb — are pointing to President Obama’s contravention of the rule of law in the Chrysler bailout as a sign we are not dealing with a man much concerned with the bounds of classic liberal governance. While others — Thomas Sowell, Steven Calabresi — are pointing with concern to Obama’s advocacy of personal feelings and personal perceptions of redistributive “justice” as a basis for deciding court cases. Every one of these analysts is well familiar with Friedrich Hayek’s classic writings on the incompatibility of the rule of law with the vision of arbitrarily imposed “fairness” and “social justice” advocated by leftists like President Obama. Hayek takes up this theme in several of his works, but none is more famous than is the original exposition in his perennial bestseller The Road to Serfom.
At its deepest level it can arguably be said that the great political conflict of our time is between the traditional American vision of the Rule of Law famously articulated in the work of Friedrich Hayek versus the classic leftist vision of arbitrary power in the service of personal feelings imposed in particular cases as articulated by President Obama. This is the deep context for the debate being played out in the articles and columns of Zywicki, Will, Robb, Sowell, Calabresi, and others. It is perhaps worth laying out head to head a bit of these conflicting visions as articulated by Friedrich Hayek and as articulated by Barack Obama.
F. A. Hayek explaining the difference between a society ordered according to the Rule of Law versus a society ruled by decrees issued on the basis of personal feelings of “fairness” — from The Road to Serfdom:
Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principle know as the Rule of Law. Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand — rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge ..
Where the precise effects of government policy on particular people are known, where the government aims directly at such particular effects, it cannot help knowing these effects, and therefore cannot be impartial. It must, of necessity, take sides, imposing its valuations upon people and, instead of assisting them in the advancement of their own ends, choose the ends for them.
If we want to test the usefulness of the principle of “fairness” in deciding the kind of issues which arise in economic planning, we much apply it so some question where the gains and the losses are seen equally clearly. In such instances it is readily recognized that no general principle such as fairness can provide an answer. When we have to choose between higher wages for nurses or doctors and more extensive services for the sick, more milk for children and better wages for agricultural workers, or between employment for the unemployed or better wages for those already employed, nothing short of a complete system of values in which every want of every person or group has a definite place is necessary to provide an answer.
In fact, as planning becomes more and more extensive, it becomes regularly necessary to qualify legal provisions increasingly by reference to what is “fair” or “reasonable”; this means that it becomes necessary to leave the decision of the concrete case more and more to the discretion of the judge or authority in question.
President Obama on what he seeks from the courts and from his appointees to the court:
I will seek someone who understands that justice isn’t about some abstract legal theory .. it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families .. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes ..
.. there’s gonna be those five percent of cases [before the courts] .. where the law isn’t clear, and the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And in those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable .. that the courts become a refuge for justice.
[one of the] failures of the civil rights movement [was that] the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society ..
.. cases that are truly difficult .. can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy .. in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.