The Constitutional Philosophy Of A Free Society

In the current discussion of Hayek's theory, two problems have preconditional significance for the interpretation of Hayek's theory. The first is about the"closeness"and"openness"of ideology. The ideological closeness in Hayek's theory will possibly bury the possible significance of Hayek's academic viewpoints. A researcher first of all needs to lay open the academic significance covered by ideology and find out the most common and general academic significance in Hayek's academic theory. Along with the ideological closeness in Hayek's theory being broken day by day, the importance of the other problem becomes ever more conspicuous, namely the problem of"closeness"and"openness"in Hayek's theory and understanding to it against the background of modern political philosophy. Under the views of the development of modern political philosophy, how to think openly the unique significance and possible potential of Hayek's Theory is the key to the vitality of Hayek's theory. There are two trends at present to interpret Hayek's theory. One is to admit and have no disposition to break the estrangement between Hayek's theory and modern political philosophy at the background of the former. Though the other trend tries to break the estrangement, it will in the final analysis make Hayek's theory a footnote of the controversies in modern political philosophy in an analogical research.In this context, the discussion of Hayek's constitutional philosophy of a free society in this article is not only an analysis of the logic of Hayek's constitutional philosophy, but also the contemplation on the theoretical significance and potential theoretical path of Hayek's constitutional philosophy against an open background of modern political philosophy. In order not to make the open discussion the footnote of discourse of modern political philosophy, this article adopts a specialized research mode to go into the construction process of Hayek's theory, presentation of problems and the process of solution in contextualization, scan the possible connecting point between Hayek's theory and modern political philosophy by the perspective of internal investigation, and enquire the theoretical response of Hayek to the problems of political philosophy in the construction of his theory, via which the intelligence increment and theoretical contribution of Hayek's theory have also been discussed.This article is divided into six parts, and the introduction is devoted to the raising of questions and the expression of research approaches. In the Part Two, the current discussion of Hayek's theory under the modern viewpoint has been explored first. From my point of view, these multiple and contradictory understandings toward Hayek's theory, although lost the inner path of Hayek's theory itself, can provide us with an excellent starting point to approach Hayek's theory. We can consider whether the questions caused by these understandings appear in the inner path of the Hayek's theory and in what specific ways, and from which we come into the Hayek's theory and perform the so-called internal investigation. The way of internal investigation of this article is not equivalent to the way Deng Zhenglai used in his discussion of the"knowledge approach". The way he used can really express the logic of Hayek's theory, but this absolute logical understanding can not display Hayek's complicated process of the construction his theoretical system and the question in it. So the way of internal investigation of this article first analyzes the profound ontological framework, in which Hayek put forward his"lifetime problem". In my opinion, Hayek's"lifetime problem"and his"knowledge approach"are intended to criticize and break the static"closed society"pattern which the empirical realism premises. Finally, Hayek provided a theoretical model for an"open society"which the critical realism premises and its operating principles. Fleetwood considers what Hayek proposed is a transformational theory of process, and it is an interpretation of an"open society"with a copy / transformation process. Through the investigation of Hayek's theory, I think Hayek's theory could be divided into two stages: the first stage is to expatiate market process and set up a"competition"and"dynamic equilibrium"model. Its methodological basis is methodological subjectivism and individualism. The second stage is to expatiate the operating process of the society. It is in this stage that Hayek began to break into the sphere of social and political philosophy and developed the theory of spontaneous social order. Certainly, the expatiation of these two theories has its certain continuity.After the explanation of the basic context and its two stages of the development of Hayek's theory from the ontological level, in the third part of this paper, the systematic theoretical construction of the liberalist theory, that is the process of the construction of the theory of spontaneous social order, is then explored. The close relationship between the theory of Mill and that of Hayek before the latter's entry into the context of political philosophy is dwelled upon. According to my understanding, the open context of political philosophy presented by Mill is the logical starting point of Hayek's construction of his spontaneous social order. Although Hayek did not employ Mill's way of argumentation while quite to the contrary he entered the venation of the construction of his social theory via the tradition of Scottish Renaissance, the influence of Mill on Hayek is more than obvious. With all these as a basis, I therefore advance to the specific argumentation of Hayek's The Constitution of Liberty, pointing out that there are two threads of argumentation, namely the moral argumentation and the social perspective. The employment of these two perspectives and their confusion lead to his further confusion of the two conceptions of legal rules and his development of the formal conception of the rule of law and that of the state. Therefore, Hayek at this period of time was swaying between the way of argumentation of political philosophy and that of social theory. After this, the theoretical development of Hayek after the publication of The Constitution of Liberty has also been explored. As I understand it, Hayek finally perfected his social theory via the logic of"evolutionary rationality"and realized the integration of the previous two approaches in the framework of social evolution. As a result, this integration by Hayek is totally different from ordinary moral argumentation of political philosophy and its theoretical potential should be further investigated.After the internal contextual investigation of Hayek's theoretical construction of the theory of spontaneous social order and the integration process of perspectives, the fourth part of this paper further probes into his conception of state and the constitutional innovation with his social theory as a basis. Galeotti's proposition that Hayek's social theory is incompatible with his political and state theory is refuted and the process of his development from formal state of rule of law to that of substantive constitutional state is then investigated. It is held that Hayek finally abandoned his formal conception of the state and after redefining state in the framework of his social theory, he developed the framework of the substantive constitutional institution, which leads to his proposition of the theory of limited democracy under meta-legal rules. It is proposed that Hayek's conception of the state under the framework of substantive constitutional institution actually refers to the state in the sense of"horticulture"raised by Eugene Heath. State in this sense acts as a"gardener"for the smooth occurrence of the"spontaneous social order". The state is not outside of the social process of spontaneous social order and quite to the contrary, it plays a substantive role in the construction of this order. Therefore, Hayek's substantive constitutional state on the basis of his social theory is not the"neutral"state in the sense of liberalism and is not the state that realizes the"common good"in a collectivist way in the sense of communitarianism; it is rather a possible alternative to both.In the conclusion part, on the basis of the internal investigation of Hayek's theory of political and constitutional philosophy of a free society, it is pointed out that the evaluation and criticism of Hayek's constitutional philosophy can not be approached from the outside because the outside mode of criticism cannot help to find the real defects of Hayek's theory and cannot give due assessment to his theoretical potential either. The approach that really matters in the research on Hayek's theory is the mode of internal investigation and only this approach can help enter into the entire process of Hayek's theoretical construction to grasp the deeply-rooted premises in his theoretical construction, to grasp the defects in his theory and to open up new theoretical possibilities as well.