In his article “Yes, we must pay attention to judges’ values” (Globe & Mail, June 8, 2011) Professor Allan Hutchinson of Osgoode Hall Law School opines that when it comes to filling the two upcoming vacancies on the Supreme Court of Canada, “It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges.”
Well, at least Hutchinson is half right. Karl Marx would indeed have made a lousy judge, but not because he was an ideologue. It’s because his ideology stinks. It’s patently inimical to human flourishing. Wherever it has been put into practice, it has resulted in the widespread impoverishment of the population and the deaths of many innocent victims at the hands of totalitarian despots. All of these results are predictable and inevitable consequences of socialism. Marx’s failure to recognize this—or perhaps to give a damn—seems to show a certain lack of judgement on his part. I’d never want to entrust him with making any decisions that could affect people’s lives.
Friedrich Hayek, on the other hand, espoused a free-market ideology which has been the unceasing engine of human prosperity and well-being despite the worst efforts of socialists to rein it in. Hayek was both an economic and social liberal (in the original meaning of the word—i.e. he espoused liberty). He wrote elegant, masterful works called The Constitution of Liberty and Law, Liberty and Legislation which every Supreme Court justice would do well to read. He won a Nobel Prize for economics. He would have made an extraordinarily good judge.
How can anyone seriously compare Karl Marx and Friedrich Hayek in the same breath? Hutchinson’s error comes from failing to recognize the lack of parallelism between the two ideologies, which he posits as the extreme positions on a continuous left-right spectrum. Marxism and classical liberalism are not two sides of the same coin--not at all.
In a Hayekian state, anyone who voluntarily wanted to opt out of capitalism and live as a Marxist would be at liberty to do so. Quasi-intellectuals like Marx could form communes and collectives to their hearts’ content. They could agree to whatever motivation-sapping form of wealth redistribution, and whatever stifling regulations, they could concoct. No-one would stop them. The only rule that Hayekian ideology would impose would be a prohibition against coercing someone into joining a commune against his will, or coercing them into remaining after the period they had contracted for had expired.
There’s no parallel under Marxism. A Marxist state (or even a moderate socialist state like Canada is today) does not allow dissidents to opt out of socialism and live as capitalists. On the contrary, dissenters are coerced through taxation into supporting the system they may despise. They still have to pay for the public schools even if they educate their kids at private schools or at home. And dissenters can’t opt out of the voluminous regulations imposed by socialism, even if they are willing to assume all the risks involved in exercising their own judgment. They can’t buy unpasteurized milk even if they observe that their health is better with it.
There’s nothing wrong with ideological judges, so long as their ideology is rational and beneficial. If Stephen Harper could find a modern-day Friedrich Hayek to appoint to the SCC bench, it would be a sensational blessing to the country.
(This blog does not necessarily represent the opinion of my employer, the Canadian Constitution Foundation.)