A Collectivist Judge Is a Contradiction in Terms

It is a bit of a mystery why people who claim to be American-style conservatives do not embrace Friedrich Hayek, the economist and legal theorist who was awarded a Nobel Prize in economics in 1974. The mystery dissipates when one realizes that most self-identified conservatives are in fact as collectivist as the self-defined progressives (“liberals” in the confusing American terminology). Each side gives primacy to collective and political choices over individual and private choices, except that it is different collective choices that each side wants to impose. The difference is typically about which groups in society will be favored and which ones harmed.

Let me quote a revealing passage from Hayek’s Law, Legislation, and Liberty (1973–1979; 2021 for the new edition by Jeremy Shearmur), which opposes the common interest of all individuals to each follow his own ends and purposes to an overarching “public interest.”[1] Observe how the quoted passage expresses ideas that are radically opposed to what “the left” and “the right” in the world, Democrats and Republicans in America, believe (to the extent that they believe in anything and, of course, that neither of these two constructed collectives is unanimous). Hayek explains the role of the judge in a free society under the common law (pp. 151–152):

The judge, in other words, serves, or tries to maintain and improve, a going order which nobody has designed, an order that has formed itself without the knowledge and often against the will of authority, that extends beyond the range of deliberate organization on the part of anybody, and that is not based on the individuals doing anybody’s will, but on their expectations becoming mutually adjusted. …

But although the judge is not committed to upholding a particular status quo, he is committed to upholding the principles on which the existing order is based. His task is indeed one which has meaning only within a spontaneous and abstract order of actions such as the market produces. He must thus be conservative in the sense only that he cannot serve any order that is determined not by rules of individual conduct but by the particular ends of authority. A judge cannot be concerned with the needs of particular persons or groups, or with ‘reasons of state’ or ‘the will of government’, or with any particular purposes which an order of actions may be expected to serve. Within any organization in which the individual actions must be judged by their serviceability to the particular ends at which it aims, there is no room for the judge. In an order like that of socialism in which whatever rules may govern individual actions are not independent of particular results, such rules will not be ‘justiciable’ because they will require a balancing of the particular interests affected in the light of their importance. Socialism is indeed largely a revolt against the impartial justice which considers only the conformity of individual actions to end-independent rules and which is not concerned with the effects of their application in particular instances. Thus a socialist judge would really be a contradiction in terms. …

The difficulty many people feel about conceiving of the judge as serving an existing but always imperfect abstract order which is not intended to serve particular interests is resolved when we remember that it is only these abstract features of the order which … can constitute a true common interest of the members of a Great Society, who do not pursue any particular common purposes but merely desire appropriate means for the pursuit of their respective individual purposes.

In short, the role of the judge in a free society has nothing to do with the policy interests of the government or with the personal interests of politicians and bureaucrats, and everything to do with the maintenance of a free society where each individual can pursue his own interests limited only by abstract rules banning some means of action (say, murder, aggression, and theft). But note that this logically condemns not only a socialist judge, but any collectivist judge, whether of the left or of the right, that is, any judge pretending to enforce the supremacy of collective choices. It is virtually certain, I believe, that Hayek would have accepted this amendment.

Note how radical this part of Hayek’s legal theory is. A judge in a non-collectivist (classical liberal) political regime has no role in defending government policy. He only follows and enforces general rules meeting the long-term agreement of a majority of the population and that apply to both private individuals and government agents (except for the government’s power to levy taxes and some other exceptions that I criticize in my review of the third part of Law, Legislation, and Liberty).

A recent court case provides an interesting illustration. The Department of Justice wanted a court to dismiss the case of a policeman found guilty of using excessive force (and on a woman at that!), arguing that the “public interest” is “what the government says is the public interest in this courtroom.” Judge Stephen Wilson, acting like a non-collectivist judge, rejected this argument. From a short review of the decision by Paul Cassell, who argued against the Department of Justice in court (see “The Volokh Conspiracy” in Reason Magazine, August 11, 2025), we may suspect—or hope—that Judge Wilson’s view was not far from Hayek’s distinction between a common interest in the existence of a free society on one hand, and the public interest as whatever the government determine it is on the other hand.

These considerations remind us that the “public interest” as an impossible summation of private interests is either an empty or a contradictory concept. [2] It is tempting to propose a reductio ad absurdum in the spirit of Anthony de Jasay: the state is needed to defend the public interest, and the public interest is what the state decides it is.

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[1] I reviewed the whole trilogy for Econlib, and the third article of my review provides hyperlinks to the other two.

[2] See my EconLog post “What in Heaven’s Name Is the Public Interest?” and my Econlib article “The Vacuity of the Political ‘We.’

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