Babcock examines how Hayekian insights can guide feminist reform efforts.

Grant Babcock
Philosophy & Policy Editor

Grant Babcock is the Philosophy and Policy Editor of Lib​er​tar​i​an​ism​.org and a scholar of political philosophy. He is especially interested in nonviolent action, epistemology of the social sciences, social contract theories and criticisms thereof, and finding libertarian‐​compatible responses to cultural problems.

As I discussed last week, feminism offers compelling critiques about existing customs and institutions and proposes to replace those customs and institutions with better ones. Hayek places some obstacles in the way of this project. First, Hayek explains how even flawed institutions can still have value for people living under them. Second, Hayek writes (as I have mentioned previously) in Law, Legislation, and Liberty, “The brain is an organ enabling us to absorb, but not to design culture.” If that’s right, we can’t fabricate replacements for undesired existing customs.

Today, I’ll explore what a feminist response, at least a libertarian feminist response, to those concerns might look like. Even if a reader doesn’t agree with feminism’s conclusions about which social institutions are bad, I hope the discussion will provide a good example about how other rationalist reform programs might proceed.

The first thing is to push back a little against Hayek’s analysis. Is it really beyond human capacity to redesign aspects of the social order? And are the risks of meddling as grave as is commonly suggested by Hayekians, Hayek himself, and thinkers in the mold of Burke? The second thing is to adjust reform efforts to accommodate Hayekian insights about how customs spread and die out.

Judge Richard Posner nicely deflated concerns that changes in social customs and institutions would cause society to collapse during the oral arguments for a pair of recent gay marriage cases. (You can find the audio clips containing these quotes here.) He points out that the threatened potential impact of changing even relatively minor social institutions is often overblown:

It’s tradition. We don’t want to change it because we don’t know what will happen, right? Change a tradition? Terrible! What if men stopped shaking hands, right? It’d be the end of the nation, right?

He argues that to be sensible, deference to tradition must be limited; otherwise it preempts every attempt to make any change:

You could say that for every constitutional case: We don’t know what’ll happen. Let women have access to contraception in Connecticut in 1964: We don’t know what’s going to happen. Society may collapse. Why isn’t that always a problem?

Posner also identifies a time in the past when a social institution was changed for the better, citing the decision in Loving v. Virginia, a case about interracial marriage and the “miscegenation” laws that forbade it:

Look, they could have trotted out [traditionalist conservative] Edmund Burke in the Loving case, right? What’s the difference?…There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition; it got swept aside. Why is this tradition better?

Sometimes an attitude of deference to tradition must be overridden. Hayek concedes that there are times when the law must be reformed, and though he wasn’t talking about customs at the time, the argument can be consistently extended beyond legal rules to informal cultural rules. In Law, Legislation, and Liberty, Hayek refers to evolved legal rules of the type “discovered” in common law courts as “law,” and invented legal rules of the type created by legislatures as “legislation.” Although he largely denounces the replacement of law by legislation, he does concede that legislation, that is, the rational construction of norms, can be warranted in some situations:

For a variety of reasons the spontaneous process of growth may lead into an impasse from which it cannot extricate itself by its own forces or which it will at least not correct quickly enough. The development of case‐​law is in some respects a sort of one‐​way street: when it has already moved a considerable distance in one direction, it often cannot retrace its steps when some implications of earlier decisions are seen to be clearly undesirable. The fact that law that has evolved in this way has certain desirable properties does not prove that it will always be good law or even that some of its rules may not be very bad. It therefore does not mean that we can altogether dispense with legislation.

The necessity of such radical changes of particular rules may be due to various causes. It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust. But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice.

But such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law. This is more than can be accomplished by decisions of particular cases in the light of existing precedents.

Likewise, the recognition that some hereto accepted customs are unjust may require revisions of whole sections of a culture’s traditions. The question then becomes how to bring that about. That effort can be made easier by taking Hayekian concerns to heart.

One way we’ve seen customs change in the past is for the form of the custom to be retained while the meaning shifts. The best example I can think of is saying “Bless you!” when someone sneezes.

No sane person still believes that illness is caused by demonic influence. Yet a great many people, atheists included, will still say “Bless you!” when someone sneezes. Then and now saying “Bless you!” is a conventional way to show concern for someone, although now it has lost much of its religious connotation. The form of expression was retained while extraneous parts of the substance—belief in evil spirits—faded away. Now it’s more‐​or‐​less taken only as an expression of concern. Some existing gendered customs may be salvageable in this way.

In “Being a Good Rationalist,” I discussed the difficulty of constructing a new language versus letting one emerge. The same difficulty holds for inventing new words and constructions in an existing language. For example, getting novel pronouns to catch on, as some feminists have suggested, is a daunting task. New pronouns like these either attempt to be gender neutral or attempt to give speakers a way to refer to people who don’t neatly fit “he” or “she.” Language isn’t immutable, but change comes only gradually and almost never as the result of a centralized effort to impose new usages. For some purposes, there’s probably no alternative to a protracted effort to get people to adopt new words. In other cases, though, easier gains might be had—and indeed have been had—by getting people to adapt their usage of words they already understand, for example by sometimes using “she” to refer to a hypothetical person of indeterminate gender rather than always defaulting to “he.”

Last week I talked about how certain dating rituals constitute a kind of language that help us signal our affection for existing partners or romantic interest in potential new partners. An understanding of Hayek suggests that a better fix than uprooting these rituals might be to make them less gender‐​specific. That would mean, for example, normalizing practices like a woman bringing me flowers to signal interest. Right now, that would signal neediness or desperation on her part because the default is for the male partner to be the one who does the inviting. If enough women started asking men out on dates, and enough men stopped penalizing them for it, that could change.

More generally, publicly visible transgressions of bad norms have a lot of potential to rob those norms of their potency. This principle is a big reason for the effectiveness of civil disobedience in getting rid of unjust laws and policies.

This obviously hasn’t been a complete discussion of rationalist social change methods, or even of feminist social change methods. I hope, however, that the examples I have given are suggestive of the proper sort of attitude a rationalist reformer should have—informed by Hayekian concerns, but not cowed by them.