Juliette Sellgren 

Science is the great antidote to the poison of enthusiasm and superstition. Hi, I'm Juliette Sellgren and this is my podcast, the Great Antidote named for Adam Smith, brought to you by Liberty Fund. To learn more, visit www.AdamSmithWorks.org. Welcome back. We've been talking a lot about Hayek this month, and obviously we're always talking about Smith, but this conversation is going to continue today on September 18th, 2024. Today's episode is not going to be a typical Hayek or typical Smith but them in lights you haven't necessarily thought of before. So we're going to be talking about Hayek on social justice and spontaneous order, and then Smith on, I mean you're probably going to be able to phrase this better than I will, but on the polity and actually the political side of Smith and humans as political entities kind of and how Pride gets in the way of that or interacts with that. Today I'm really excited to welcome Professor Jacob Levy onto the podcast to talk about this. He is the Tomlinson professor of political theory at McGill University and is the coordinator of the research group on constitutional studies at McGill. Welcome to the podcast.

Jacob Levy 

Thank you, Juliette.

Juliette Sellgren (1.32)

So first question, since you've never been on the podcast before, what is the most important thing that people my age or in my generation should know that we don't?

Jacob Levy (1.44)

This question puzzles me a little bit because the most important things that people don't know, everybody doesn't know how to make good moral choices. Well, how to choose among conflicting ends in your life, how to think about trade-offs in the world. And I think that any of the really serious answers to this question would sound mistargeted if I said, well, young people these days don't know how to, well, everyone always struggles how to, and you didn't ask the question, what are the things that people my age need to know that we don't, but that other people do know? So my actual answer to the question is that one, the most important things to know that people your age don't know are the things that nobody knows for sure or nobody knows in a settled way- how to make good choices, how to confront trade-offs, what kinds of strategies to adopt going through life where you have to make sacrifices.

The question that I think you need to be asking, I'll treat more lightly, and there's been a loss of knowledge for everyone through the Covid era. There's a loss of knowledge about how to interact with people, about how to interact with people in ways that are polite and moderated and accommodating and tolerant. And for people your age, that loss of knowledge happened just at the moment when some of the really valuable learning of those things could have happened. And I don't think that this is a special crisis of university students. I think that across the whole social order, we are still struggling to recover from people's loss of social knowledge and people's inability to deal with each other in moderate tolerant ways. But I suspect that it's a bit worse for people who suffered that loss just at the moment that they could have been acquiring those skills in their first adult way altogether. So the answer to the question I think you mean to be asking is learn how to be more patient with each other, learn how to accommodate and coexist.

Juliette Sellgren (4.15)

That's a great answer, and I mean to your first question, it isn't inherent that the question I ask is just about my generation. You're right, but this is something I've been struggling with just thinking about and I think a lot of people just in the modern day today across generations feel this way. And honestly, maybe the older you are the more you feel it, but we are inundated now with information, not just that we have it all at the tip of our fingers, but that so much knowledge has been accumulated from, well, I'm going to say Plato onwards, but it started before Plato, long, long time, right? First through spoken, then written and now electronic, which I guess is still written. But how do you kind of parse through that? Is there a way that you have found to kind of, I don't know what to read and what not to and what to trust and what not to given that there's so much out there, not just in this moment every day being produced, but so much progress has been made in terms of discovering knowledge, kind of like answering questions, and yet some of these questions remain unanswered.

So how is that possible? And do these questions just not have answers that are findable in this way?

Jacob Levy (5.51)

The biggest questions don't have answers that are reducible to formulas. And one good filtering device is to distrust anybody who tells you that they have found the one quick trick to really solving deep permanent problems. If there's a list of seven of something where it's an attempt to answer a question that you think is really very important, then probably they're selling you something. As for the rest, there's a flood of information, but that's not the same as a flood of knowledge. There's a flood of stuff and lord knows I spend more time interacting with the flood of stuff then is probably good for me. I spend more time online on Blue Sky and Facebook than I probably should, but there at least I'm still reading. I really don't interact much with the non-text space, online sources of too much stuff, Instagram or TikTok or anything like that.

I'm sure that by the time this goes to air, Instagram and TikTok will already be a year out of date and I won't even know the name of the next thing, but basically I know how to interact with text. I really don't know how to interact with pictures and video to nearly the same degree, but the flood of information is not a flood of knowledge and the flood of information is good for getting minute by minute information about what's happening in the world and that's what keeps me hooked on it, spending too much time on it. But knowledge requires stepping back and interacting with things more patiently that other people have developed more patiently. That means reading books. It doesn't mean finding the right social media platform for it. And the strategies for knowing how to choose among books, among pieces of research, among long form essays, I don't think they've actually changed that much.

One of the things I do like to do online is get pointers to books or long form essays or long form magazine articles or other kinds of substantial developed arguments. So I follow authors whose work I like so that I know when they've done something more substantial, but then you want to go read the more substantial thing and there are filtering devices having to do with, is this using a strategy of argument that I have good reason to trust or is this using strategies of argument that I have good reason to think are suspect? And there are filtering devices about venues. I'm an academic, and academics believe that a peer reviewed book from a university press is more likely to add to actual knowledge than is a self-published manifesto that Amazon is making available on your Kindle as if it were a real book. That doesn't mean every peer reviewed university press book is equally good, but it does mean there's some filtration that you can engage in that way and there's more likely to be something true and real in the New Yorker or The Atlantic than there is on any of a variety of kinds of highly ideological websites.

I don't know whether that was the kind of question you were asking.

Juliette Sellgren (9.31)

Yeah. But then I guess to build on that, when you go to actual knowledge, the stuff that has been built out of time and patience and commitment, you still have, let's say you want to interact with someone like [Karl] Marx for example. You still have to go back and maybe not necessarily, but it helps to then go and read his contemporaries and the people who responded to him after and the people who came before him. And there's just even so much thoughtful long form thought out content, content makes it sound sillier, but knowledge that, I don't know, maybe this is just a perennial problem of humans. How did Aristotle know who to study and include in his history of philosophy when he was thinking about it? I guess you have to make cuts somewhere, but how do you deal with the fact that even the mass of knowledge continues to grow? Is it just dependent, I guess, on what your interests are? What are the bounds of what I guess a good academic or a good thinker or someone who just wants to get better at this for their own livelihood and to try to answer these questions?

What sort of bounds do you put on that sort of stuff?

Jacob Levy (11.07)

There aren't hard boundaries other than time really fundamentally, and I'm in the very fortunate position that what I do for a living really includes, I keep finding new things to read and that's genuinely part of my job, because finding new things to read is part of what it means for me to be doing research that I can then write about or finding new texts that new old texts often that I can teach to students or advise students who are doing research on or that kind of thing. But even though I do it for a living, there aren't enough hours in the day and there are many, many more books that I want to read than I'm ever going to have time to read. And so then there are just choices driven by specialization. What question am I trying to answer right now? And the question I'm trying to answer right now might not be the very most important questions.

I think you are talking from a perspective that is earlier in the process of knowing what to specialize in. You are just driven by an open-ended curiosity, whereas I have to be driven by something that balances open-ended curiosity and a sense that, well, here's a research question that I might have something to say on if I invest the time in learning about it because I think it matches up with my existing knowledge. I think it matches up with my skills. I think it matches up with my professional and disciplinary and subdisciplinary expertise. So I read much more deeply in political theory than I do in empirical political science or intellectual history or analytic philosophy. And within political theory, I read more deeply in 18th century political thought and the history of liberalism and constitutionalism and some aspects of medieval political thought than I do in Aristotle- to mention someone you just named. None of that's a rule to follow, and after you specialize for a while, you want to branch back out again. And over the course of my career, I've had multiple waves of hitting a point of satiation with how specialized I was on one topic and going back and broadening back out again, but the broadening back out can't just keep on going because there aren't enough hours in the day and there aren't enough years in a life I broaden back out until I find some new question that I can pursue more deeply again.

Juliette Sellgren (13.45)

I like that it adds a level of visual to this that I think the term pivoting maybe doesn't, but effectively it sounds like a pivot in the intellectual trajectory of what you're learning about, which is it's a helpful visual that for someone that is an academic hopeful who is interested in maybe a million too many things to be practical, that makes me feel like there actually is a way forward instead of kind of this paralysis that is all too common I think among people faced with abundance, which I guess applies in 1,000,010 different ways nowadays. 

But okay, I wanted to start with an easy question, but all roads kind of lead to this question which leads to more questions, which is deceptively kind of really difficult, which is what is justice and I guess to already ask the second question in order to lighten the load as though you can't handle it, which you totally can. I'm thinking about Hayek, who many people think of as an economist, but honestly given the amount that he was reading and the breadth of the subjects that he was talking about and the applications of his thought, there's more to him than that. He's more than just an economist. So how does he kind of fit into the question on justice?

Jacob Levy (15.21)

Hayek isn't a theorist who's going to offer a definition of justice, though he does have some accounts about how broad a concept it should be, and that's an argument even then that he reached closer to the end of his life and his career thinking in particular of Law, Legislation, and Liberty volumes one and two in the 1970s. I think that Hayek’s methodological innovations, thinking here crucially about the various ways that over the course of his life he helped us think about spontaneous order and evolution, social evolution, normative evolution. I think those are more enduringly valuable than the things he happened to say about justice in particular at that one moment in his life.

What he had to say about spontaneous order is most often assimilated to just the case of the price system and the extended market order, but he really thought that spontaneous order helped us see a great deal more than about the economy, and this was one of his moments of broadening as he was reaching a state of dissatisfaction with professional economics, partly in the wake of [John Maynard] Keynes’ rise, he shifted gears. He thought that when he thought about market processes, he was seeing something more fundamental and more widespread in what social interactions were like and what social orders were like. So he started to think among other things about the ways that norms evolve and develop. I'm going to jump ahead a little bit in our conversation because I think he was rediscovering something that genuinely was in Adam Smith but that he didn't quite know was in Smith, even though he was relying on Smith in part for thinking about the spontaneous order. Smith is famous in this context for the invisible hand metaphor and Smith thought, Hayek rather, thought that he was generalizing from Smith's invisible hand. The general idea that a great deal of what happens in a human society is a result of human action but not human design.

But for Smith, too, the invisible hand is just a particular case of something that was more fundamental and something that was really central to Smith's moral theory developed in The Theory of Moral Sentiments. In Smith's model, we humans are always in the very local individual business of judging and being judged. I see something happen, I see someone hit someone else, I see someone insult someone else, I see someone help someone else and I react and I respond and I judge and sometimes I get more information that leads me to revise my judgment, but I approve of some of what other people do and disapprove of what other people do and those other people notice me judging and they would rather be judged well than be judged poorly and their behavior response to that. There's a way of thinking about normativity that I think Smith helped pioneer where what we think of through big languages like morality and justice emerges out of this kind of process.

We can start from pretty simple basic moral or normative reactions, but accomplishing an end which was no part of our design. As Smith says in the hand passage about the economy, we propagate and make more complicated our norms and our beliefs, our basis for judgment interact with each other and we learn from each other. We say, oh, you seem to be judging more accurately than I am. You've taught me something about what kind of information I need in order to assess what just happened in that interaction that I saw. You've taught me something about what's really praiseworthy and what's really blame worthy. Through that learning process, we all go on refining our judgements and our judgements interact with each other to become sets of norms that are in some sense larger than all of us. They are a social normative order, which then in turn we internalize and we apply in our localized judgements.

It's a process that's very much like the interaction between individual level self-interested decisions and the larger social prosperity that Smith diagnosis in the invisible hand. Hayek doesn't talk about the theory of moral sentiments very much over the course of his scholarship and where he does it's later in his career than when he'd made the key breakthroughs. But the theory of moral sentiments has set up a spontaneous order of norms and judgments and is a spontaneous order that gives rise to and calls for differentiations between different kinds of virtues, different levels of normative urgency and justice is one of them.

Hayek rebuilt and rediscovered that to some extent in thinking about the evolution of norms. Those are the innovations that I think we want to rely on Hayek and behind Hayek, Smith for more specifically, eventually Hayek wanted to argue the key things about justice as a normative system are that justice is a matter of having rules of just conduct. So this was his way of saying not what justice looks like as the overall emergent norm out of this spontaneous order process, but justice as the micro level inputs the rules of just order are repay your debts, keep your promises, don't use violence or force or fraud against other people, that kind of thing. So rule of just conduct is don't steal, don't murder.

Hayek kind of wanted to say that justice in a larger sense simply was what happened when all the individual level inputs were people observing the rules of just conduct. I don't think that he had a good argument for bridging the micro to macro in just that way. I think that we should be willing to think that there are social phenomena that we would want to call just or unjust, where the social fact, the big macro level thing is not what any of the participants intended that is to use a language that postdates Hayek a little bit. The justice and injustice might be emergent properties of all of those local and individual interactions and decisions and judgements, not just the name that we attach to some of those individual level things. I've been talking for a little while now without interruption. So far so good. Has all of that made some sense?

Juliette Sellgren (23.33)

Yeah, at the end there I'm wondering, so what you're saying just to clarify, is that I essentially, Hayek wants to say that you can take the aggregate of all the individuals and if all of that is just then the outcome is just, but sometimes it's the case that this is just not true, that it just can't be true even if everyone is acting justly at least by their estimation and is actually intending to be just sometimes you still don't get the aggregate being a socially just outcome.

Jacob Levy (24.13)

Yes, insofar as the rules of just conduct are mostly negative, don't use force, don't use fraud, don't break your promises or your contracts saying that all of the individual level actions are just, is really just a way of saying everybody's refraining from committing those moral wrongs or moral crimes. So not telling us anything about what people are actually doing. So the character of the overall social order that emerges is going to depend on the actual content of what people are actually doing and what you just said is right. I think that there's no guarantee that what emerges will have the normative properties we want to characterize by justice simply because everybody at the micro level is respecting the rules of just conduct.

Juliette Sellgren (25.14)

So for Smith very, I mean I guess the most explicit he ever got about justice, he said you can do it by simply sitting in a chair and doing nothing, right? So it is kind of this negative restraining thing. But what's interesting is that I think Hayek on this, in this vein of human action of humans acting and not designing, I guess you can act in restraint or you can act without infringing on people's rights, but there seems to be kind of a tension there between, and I don't know, maybe I just live in my time, but between justice being this kind of negative thing, not infringing, not causing harm, and then also humans being active and needing to act, but how do you kind of bridge that gap and what does that mean for Hayek and social justice?

Jacob Levy (26.22)

One thing to note is that the famous line about justice being a virtue that you can satisfy by standing still for the most part, and even there Smith does have that qualifier, really isn't the only thing that he says about justice. And when he says that he's talking about justice as an individual level virtue, yes, it's the case that you as a person can obey the rules of just conduct by standing still. Standing still means you're not committing assault and you're not committing a fraud and so on. He never says anything like that for an overall social order. He doesn't just scale the word justice up in that way. In Book V of the Wealth of Nations when he talks about what it takes to have a coherent system of justice, which includes among other things, having a coherent system of courts that obey the rule of law under a separation of powers.

He does trace out on evolutionary history that gets you there, but it's an evolutionary history that very much depends on people doing things and sometimes requires correction when people have done wrong things and you need someone else to come in and do something new. Hayek, in Law, Legislation, volume one does something similar without quite understanding, I think how serious a movement it is that he makes. Hayek famously thinks that mostly the common law or a kind of idealized version of the common law approximates the rules of just conduct and therefore you can have a social order of law that doesn't require much deliberate legislation.

But he says in a very Smithian vein that he doesn't seem to know as a Smithian vein. But the judges all came from one social class and the judges mostly knew people from one social class. And so bit by bit case by case laws regarding for example, debt would come to favor the interest of creditors over the interest of debtors and law with respect to employment would come to favor the interest of what we in North America call employers, but with common law actually called masters over the interests of employees or what the common law called servants, Hayek recognizes is enough of a spontaneous to order thinker to recognize that lots of individual case level small biases could result in an overall system of law that was really significantly unbalanced. And this he said is where there's really a need for legislation sometimes you need the legislature to come along and deliberately on purpose rebalanced the law because the spontaneously emerged law that came out of all of those case by case micro level decisions reached an outcome that was no part of the intentions of the actors, which was to create a deeply unjust class structured society.

This is a very big moment in Law, Legislation, and Liberty and Hayek knows enough and is honest enough with himself to see that he has to say it, but he doesn't follow through on it very much. Smith I think takes that kind of thing more seriously. Smith thinks that systems of justice, systems of law always have these underlying emergent and evolutionary stories and how they turned out to be the way that they are, but that doesn't guarantee that they're always normatively attractive or beneficial. And it will often be the case that if you want your overall order to look like something that is just rather than unjust, that you're going to have to do something about it, not just stand still.

Juliette Sellgren (30.50)

It's funny because I think in the Smithian context, so I guess, I don't know, I think it would maybe be silly to assume, and maybe we know this for a fact, that I think Hayek must have been reading TMS, which is where Adam Smith talks more about the invisible hand then in the Wealth of Nations, in fact. I know, but it's funny because you see it through the lens of sympathy or empathy as you're looking into this decision as a judge of another person, you can sympathize more with one person than you can with another, and of course it's going to be the person that looks more similar to you. He talks about this a ton Smith, and so it makes a ton of sense, which then I think translates very clearly to understanding that if Smith could see this, then he would be conscious towards what actually having a polity would be like and how it would be different from maybe the perception that we have of him as classifying him just as an economist or just as a philosopher. So how does Smith from these ideas of how that sort of thing arises, does he remedy it or hint at kind of what it does to us as people in a society?

Jacob Levy (32.23)

Great, now we're reaching things in Smith that Hayek genuinely doesn't ever pick up on because in my view, Smith is one of the great political scientists and I think there's a great deal to be gained from him as a political scientist, as someone who's analyzing both what goes into and what comes out of political orders. Just thinking in his own language, he wouldn't have thought that he was any more an economist than a student of politics. The language that he and his immediate successos started to speak in about the work they were doing was political economy. And somewhere along the way we decided that only the economists are heirs to the research agenda of political economy, but Smith didn't have that narrow of vision as a thinker about the ways that our norms generate emergent social facts and the ways that our local moral decisions shape whole societies.

One of the things that Smith was keenly attentive to was what he called the love of domineering. At a local individual level, we care about status, we care about how we are seen and that we care about how we're seen is often a good thing. For Smith, it's the key to how the moral learning process and theory of moral sentiments works because I see that you are judging my conduct and if you're judging my conduct adversely and I care about how I'm seen, I will start to take that into account. I will start to act in ways that I think will lead people to judge me better rather than worse. But it's not only a good thing we can, he says corrupt our moral sentiments because they're so based on who we see or kind of imagine that we see. There's one famous discussion in TMS about this, about the ways that we pay attention to the rich and the powerful.

He says we care so much more about the misfortune of kings, then we do about all of the suffering that a king's policies might bring about that. He says the misfortune of kings is one of the only things that we write plays on that and this misfortunes of young lovers, we will care really deeply when Charles the first gets executed because he's very imaginatively visible to us and it seems to us that he must be tremendously happy because he has all the wealth and all the power and we look at the society around us and see that kind of everyone admires him. So we come to think that there must be something extremely admirable about him and we learn bad moral lessons. We learn that being rich or being powerful is a way of being admirable and harming the rich and harming the powerful, disappointing them, not obeying them even. Not obeying them is a way of disappointing them, which is a way of making them less happy than they would be. And so we come to think that it is admirable for the less powerful people to obey the more powerful people.

He says, this is the foundation of our system of ranks and distinctions and political order. This is completely unlike the stories about where politics comes from that you might've found in, for example, the social contract theorists. This is political order habits of obedience and of commanding as a kind of emergent property of this weird perversion of our moral sympathies and sentiments of the fact that we think there's something admirable about the powerful and there's something appropriate about obeying the powerful, put together a whole society of people doing that and you get this tremendous overvaluation of the people who are powerful and a tremendous prejudice in favor of too much obedience.

So that's the case where our interest in status and power for most of us count a reason to care about the status of someone else that we are just kind of caught up in the glow of. But then there are other cases too in the Wealth of Nations Book I, chapter two Smith talks about the effect the division of labor has on our moral sentiments. And of course Smith thinks the division of labor is a tremendously important, tremendously valuable thing. It's what makes possible all of the progress toward wealth and prosperity that a human society is capable of.

But he says the division of labor means that people who care about where they stand, people who care about how they're looked at and people who want to look at themselves as being of high status will be prone to exaggerate the differences between what they do and what someone else does and to treat those differences being true difference about who they are. And so he says the philosopher will tend to look at these street porter as being someone who is so much less intelligent and capable than he is as to be hardly recognizable as a member of the same species.

Smith is really quite sharp on this point. He says, we have spent endless generations telling ourselves stories about the ways that we're better than other people based on the division of labor. And I think it's not an accident that he picks philosophers as his case. It's funny that he does so given that he's a philosopher himself and it could be just self-deprecating on his part. But I think it's not only self-deprecating. I think as a commentary on the whole history of philosophy dating back to the ancient Greeks where philosophers have said the very finest life is the life of the philosopher and only a handful of people are capable of this very finest kind of life, and the lesser people are the ones who will work with their hands in the field and do the actual productive work feeding everyone.

Where does all of this come from? It comes from individual level desires to be seen well and to think well of yourself. What's the overall social order that results? It's a world of inequality become normative. It's a world where people become convinced not just inside one person's soul, but as a matter of the whole social normative order, that there are deep inequalities among humans and that those inequalities pretty well track what people do for a living or where they stand in the status quo social order. And so those who are poorer, those who are less powerful, those who are doing more manual labor, they deserve that.

That's all that they're truly capable of. And Smith insists this is plainly false. One human has more in common with another human than a spaniel does with a terrier. Two different kinds of dogs are more different from each other than the most different humans ever become, but this truth about human equality is not reflected in our social orders, partly because people are driven to rise above other people. People are driven to turn happenstance and coincidence. It just so happened that I was the one who ended up when I was a little bit younger starting work that turned out to be a little bit more bookish and intellectual than my neighbor's kid. They'll turn that into a sense of deep moral and intellectual superiority and build a social order that reflects that over and over again in Smith's thought, he traces ways that localized individual status seeking or the desire to think well of yourself or the desire to have other people think well of you aggregates and multiplies and compounds into social orders that he thinks deserve really severe normative indictment and criticism. And that's a normative indictment and criticism of a sort that we today would standardly and I think perfectly correctly call injustice.

Juliette Sellgren (42.10)

So I guess there's kind of like a multifaceted question to be asked here about what do we do? How do we reconcile the fact that it does that? Things like pride and competition? Yeah. Smith now evidently acknowledges that that can get in the way and it can cause injustice at the aggregate level, but it also kind of compels us to do more to be better people in certain aspects. But because we, it is the same mechanism by which we're actually observing other people and correcting our own behavior, but also how we get ahead economically and in terms of virtue and some of these important values. So how do we keep conscious of that at the personal level knowing that things like pride aspects that fall into our normal behavior that sometimes turn out for the better can also turn out for the worst. So how do we do that as individuals and then how do you reconcile or account for that at the level of an entire polity?

Jacob Levy (43.27)

Part of the lesson of this social methodology that we get out of Smith and Hayek is to break those two levels apart in a pretty fundamental way. The invisible hand way of thinking about social wealth becomes by implication a way of thinking about poverty. And if you want to answer the question, how do we end poverty, the answer is not by becoming more personally, individually generous. That's not a reason not to become more personally, individually generous. Generosity is a virtue and the particular person you're helping, you're helping. But Smith would not have said, right? The fact that we observe poverty in the world is a sign that each of us individually needs to undergo moral reformation to become more generous. The fact that's poverty in the world is a sign either there isn't enough wealth and what we want is more productivity, more prosperity, more wealth, so that there's just a super abundance, for example, of ordinary food products so that the cost of not going hungry keeps falling and falling and falling.

Or there are systematic and social level biases in who is able to gain access to the fruits of our prosperity and that cultural political solutions, not individual level moral reform, it's often going to be the case if spontaneous order theory is right. It's often going to be the case that there's a mismatch between how good or bad we are as people and how good or bad the societies that we created are. One example that maybe is more familiar to people today is the idea of structural racism. The structure in structural racism is really important. One of the things that it does is introduce a gap between what's happening at the level of the whole society and what's happening at the individual level. And it's a gap that sometimes people will ignore or forget. They will say, if it's the case that this society has more racist overall structural outcomes, then it must be the case that the individual people in that society are more racist individually, they'll attribute the social outcome to the individual soul.

And structural justice is actually something much more like a spontaneous order kind of account. It says that there are social phenomena that get away from the intentions of the actors, that there are small facts that don't just aggregate but multiply and compound into something that you have a hard time tracing to particular decisions. That doesn't mean that the whole phenomenon isn't made out of individual people, spontaneous orders, invisible hand stories still say the action is happening at the individual level, but they say there's a real leap between what kind of people we are, what kinds of decisions we are making individually or locally, and how it's all turning out.

I think taking that thought seriously, and there is even some material in Smith on race and slavery that points us in this direction. Taking that thought seriously is valuable for thinking about racial injustice in big complex societies, but it requires people on multiple sides to learn uncomfortable lessons. One uncomfortable lesson for people who are broadly on a kind of individualist, right? Is that continuing to reiterate, there's not a racist bone in my body and I haven't ever done a thing that I think was racist is almost entirely unrelated to the question of whether you benefit from systematic unjust racial privilege. Think back to Hayek's case about the judges and the classes the judges came from. If you are an employer or a creditor or a landlord benefiting from the whole legal order that's emerged over centuries in the way that Hayek talks about bit by bit case by case, you have become the heir to unjust privilege.

That doesn't mean that you set out to dominate your employees or exploit your debtors, but it might mean that you are dominating your employees or exploiting your debtors nonetheless, because a system has risen up that was no part of your intention. So too for racial injustice and racial privilege. And there's an urge to the assertion of something like individual white innocence that people treat as if it's an answer to questions about racial injustice when it's really not, if spontaneous orders actually the right way to think about social orders. On the other hand, there are the people I already mentioned who will look at the magnitude of a social fact and try to attribute it to individual level guilt and wrongdoing. And if spontaneous order was the right way to think about those kinds of phenomena of structural racial injustice is the right way to think about those kinds of phenomena, then we need to break the gap going that way too. We can't attribute to individual moral agency everything that we see that we dislike at the aggregate social level. Sometimes large scale phenomena call for large scale solutions not for individual moral reform.

Juliette Sellgren (50.05)

Yeah, I mean I think in this lens you can see the legal move to end slavery, right? Like the 13th, 14th amendments and in the 15th amendment I guess kind of falls into this as and then whichever one, the 19th Amendment, is that the woman one?

Jacob Levy

I don't really know.

Juliette Sellgren (50.29)

Yes. Okay, not a good look for me not to know that, but we're going to move on. I feel like that can then be put into, it can be labeled as a moral and just legal move to remedy the problem of this particular emergent order, right?

Jacob Levy (50.57)

It's part of one, but the one thing that happens in US law interpreting the 14th amendment from a relatively early stage is the idea of badges or incidents of slavery. So even after slavery is abolished to the degree that you had a southern white population that was still driven by the desire to see itself as standing above the black population, there would be any number of ways that they would treat the fact that you had been a slave or the fact that your father or grandfather had been a slave or treat facts about language or family emergence or religious habits or the deprivation of access to literacy that you and your family had likely had. Those would become new ways to signal social inferiority and superiority. And the courts developed a language for saying, right, the reconstruction amendments weren't just about abolishing slavery, they were about abolishing the system of domination. The problem is that they were very blunt instruments for that and people who are determined to find ways to see themselves as better than other people can individual decision by individual decision generate very robust systems of norms that are still norms of exclusion and domination even before they turn to the state and have the state re-encode them as they eventually did in Jim Crow.

Juliette Sellgren (52.44)

Yeah, no, that's brilliant. I see exactly what you mean. And I think honestly, I mean it's all human correction even at the aggregate level. So we're basically, we get rid of the blunt instrument and sure it gets more kind of conniving and nuanced and hard to detect, but also it becomes more costly. And so kind of thinking through an actual economic, a strictly economic lens, you get closer to the equilibrium of having less of this injustice. Sure, it's going to keep happening, but through the iterations of identifying and rectifying, it will be reborn the same way that people get around laws they don't like all the time in any situation, but it's going to become less and less worthwhile. And it's an iterative process. It's never not an iterative process, which I think it's clear very much on the individual level with Smith and there's the separation, but it would make sense that the way to combat it on the aggregate is more Bukean and more slow, more going to, I mean, I don't know a better way to say it other than make it more costly and kind of take the steps we can and then over time it will get better.

Jacob Levy (54.19)

I don't think that's always right

And I'm going to pick two moments of what you just said. One is the progressive sense. It does just go on getting better. Sometimes it gets better, but sometimes it doesn't. And it's possible for new harder versions of if you want to use the language of equilibrium, of the social equilibrium to emerge out of one of these processes precisely because you have people who are now concerned about having to shore up and protect a system of dominance that isn't guaranteed for them anymore. So the way that segregation worked in the American South under Jim Crow required that there be rules of really absolute prohibition on whites who might have not cared very much, might have been willing to cross a variety of kinds of line, might have been willing to marry someone who's black, might've been willing to serve, customers who are black, all that kind of thing. The white south generated norms of really radical social, I exclusion toward whites who crossed those boundaries in ways that in under an narrow of slavery they didn't have to because the racial bar that constituted a bar of social standing and dominance and legal domination was very clear.

But under Jim Crow, because it had to be partly shored up privately, the norms got extremely rigid. One thing to remember about the idea of a spontaneous order is it is an order. There's something that is ultimately very sharp and clear about it. People like the language or the metaphor of how a crystal emerges as being a natural process that looks kind of like a spontaneous order. You have lots of particles bouncing around each other and then something very hard and rigid spontaneously takes shape. Sometimes the social order that emerges out of a spontaneous order can be very sharp and rigid and have norms that are really hard to break out of. And if norms are really hard to break out of, then it's hard to erode them bit by bit. And sometimes you need something like the 1960s, four Civil Rights Act and very sharp federal enforcement to try to break the whole system because if you go on with white still thinking if I cave a little bit, if I become a little bit more racially tolerant in my individual life decisions, the whole white social world is going to come down on me.

You have to break that equilibrium maybe all at once or come as close as you can to break it all at once in order to free up people's ability to develop new norms and new habits.

Juliette Sellgren (57.32)

So now I'm thinking of it more. I think you're entirely right and thank you for that. For now I'm thinking it's more like whack-a-mole where maybe you can be really careful and you should be really careful because it might get worse before it gets better. It's better to identify it and try to fix it. So if your whack-a-mole goes wrong and you have to whack it harder next time in a different place, maybe that's better. But obviously it sucks in the short term, which we still care about, I guess.

Jacob Levy (58.05)

And it's risky. Any of these instruments that are blunt and there's a reason why whack-a-mole is a violent kind of metaphor. The tools at our disposal to break social orders are in an important sense, bad tools. They do bad things. They rely on doing bad things. So there's not some clean, safe way of whacking social orders. And if you get it wrong, if you do something that's too big and too blunt, then it can be very disruptive and destructive. Excuse me.

Juliette Sellgren (58.43)

I know we're running on time here, but so if you can't really do much necessarily at the individual level, and we're really cautious and Hayek is really critical about anything we can design and think to do in this sense, not that it doesn't always work, but that, I mean, his whole thing is the funny task of economics. We show people that they can't just design things the way they think they can and you can't shatter the social order without all of this debris. I guess to maybe that sounds lighter than it might be, but how are you supposed to do it? I would imagine that maybe someone, the president of a smaller organization and not necessarily a whole country, something at the state level would be more maybe amenable to not having the disastrous consequences. But if it's not wide reaching enough, maybe it won't actually affect the social order. So where does that leave? Is there any optimism or idea of where that leaves us?

Jacob Levy (1.00.01)

People don't usually come to me for optimism. This might be cheating, but before we started talking, we had raised the possibility that maybe I would come back on the show at some point and we could have a conversation about Judith Shklar.

Juliette Sellgren 

Please.

Jacob Levy (1.00.17)

And I think that this might be the transition moment, that future conversation, because I think one of the tools at our disposal is the one that Shklar prioritizes in her account of putting injustice first, and that there are strategies of how to diagnose better and worse courses of action by putting injustice first and by paying attention to the ills you're trying to remedy rather than in the spirit of the social planner that Hayek is always so critical of with some clear positive vision about the just society you're trying to bring about. I think that there are some answers to the question you're looking for, not necessarily clear formula and not necessarily very optimistic answers, but some answers to be found by starting to add Shklar into this conversation with Smith and Hayek.

Juliette Sellgren (1.01.12)

Well, that's a perfect transition and listeners, you got to stay tuned, man. I just had, this is one of those questions. There's a reason we're still talking about it is because it's one of the

Jacob Levy 

Big question. It absolutely is,

Juliette Sellgren 

Which makes it a perfect topic for today. Thank you so much for taking the time to share your wisdom and actual knowledge and time on the podcast today. I have one last question for you if you have the time.

Jacob Levy 

Sure.

Juliette Sellgren (1.01.38)

And that is, what is one thing you believed at one time in your life that you later changed your position on and why?

Jacob Levy (1.01.53)

Trying to decide what level of seriousness of a thing to talk about here. I don't much want to talk about religion. I once believed in a kind of moral optionality of voting. I once believed the criticism of voting that said, by voting, you are endorsing all of the conduct of the actor you are helping to put into place. You are becoming the principle of that agent. You're becoming the author of their actions, and therefore you are bringing on yourself the guilt for all of the wrongs that they do. Given that governing is always a morally compromised process, that almost always means that when you vote, you are taking on someone else's wrongdoing onto yourself. And I've come to think that that's just systematically the wrong way to think about questions of democratic politics and democratic coexistence. I think that putting injustice first allows you to prioritize choosing lesser evils, and it creates a sense of urgency about preventing greater evils.

And I think that living in a crowded world full of other people who have other opinions that are respecting that you're in a crowded world with other people with other opinions means accepting that there are differences of judgment about right and wrong, and that there's something self-indulgent about saying, I'm going to remove myself from the world of other people who have other judgments about right and wrong that differ in greater or lesser detail from mine. And I'm going to treat collective decision-making collective governance as not my problem in so far as it would entangle me with you. People who have wrong opinions. I think that there's an obligation to do your best to prevent great evils in action, in concert with other people because it is a crowded world filled with other people. And part of what we morally owe each other is working out the terms of our coexistence.

Juliette Sellgren 

Once again, I'd like to thank my guests for their time and insight. I'd also like to thank you for listening to The Great Antidote Podcast means a lot. The Great Antidote is sound engineered by Rich Goyette. If you have any questions, any guests or topic recommendations, please feel free to reach out to me at great antidote@libertyfund.org. Thank you.