As I noted last month (recall), in Part II of (1960) The Constitution of Liberty, Hayek treats Weber's historicist account of the rule of law in bourgeois society as a key target. In particular, Hayek understands Max Weber as analyzing the formal legal structure of a polycentric order just as a special feature of bourgeois society. (Hayek explicitly cites Weber's Theory of Social and Economic Organization.)
In the earlier (1944) The Road to Serfdom Max Weber is absent. This has generated a puzzle for me because in The Birth of Biopolitics, Foucault is adamant in framing (the ordoliberal variant of) neoliberalism as a response to Max Weber. And I increasingly see that some of Foucault's crucial arguments about the nature of European neoliberalism (so not the Chicago school variant) are derived from Foucault's close reading of The Road to Serfdom. Yet, as my friend, Stefan Kolev, has shown in his "The Abandoned Übervater: Max Weber and the Neoliberals," Weber does not loom especially large in Ordoliberal literature. As he puts it there is a "curious disregard of Max Weber in the writings of the neoliberal generation. While certainly a towering figuring during his lifetime, after his passing in 1920 Weber successively fell into oblivion."
Interestingly enough, the historicist account of the rule of law is present in The Road to Serfdom. But it is explicitly associated with (the sociologist of knowledge) Karl Mannheim, who, at the top of chapter 6 – “Planning and the Rule of Law” is quoted as follows:
“Recent studies in the sociology of law once more confirm that the fundamental principle of formal law by which every case must be judged according to general rational precepts, which have as few exceptions as possible and are based on logical subsumptions, obtains only for the liberal competitive phase of capitalism.”[1]
The quoted passage is from Karl Mannheim’s Man and Society in an age of Reconstruction, which Hayek identifies elsewhere in The Road to Serfdom.[2]
Now, it is important for what follows, that Foucault quotes repeatedly from this very chapter “Planning and the Rule of Law,” on 21 February 1979 in lecture 7 of Birth of Biopolitics. As the editors of Birth of Biopolitics note (see especially notes 26-33), Foucault says (and is recorded as saying) that he is quoting The Constitution of Liberty, but the passages he quotes from Hayek are actually from this chapter in The Road to Serfdom (which is mentioned once in the manuscript text Foucault had prepared.) Okay, that's the kind of thing that certainly would have been corrected if the lectures had ever been prepared for a publication.
Now, here's where things get funky. If you go to Man and Society, and look up this passage you will find that Mannheim presents his own view as a correction to Weber’s account! For, in Mannheim, the sentence that in Hayek ends with “obtains only for the liberal competitive phase of capitalism” continues with “and not, as Max Weber believed, for capitalism in general.” (Man and Society, p. 180)
So, while both Mannheim and Weber treat the formal rule of law as epoch-specific, Mannheim situates it in a more narrow era. In the accompanying footnote, Mannheim explicitly cites the (rather long) chapter on rechtssoziologie in volume ii of Weber’s Wirtschaft un Gesellsaft (known in English as Economics and Society). Mannheim’s reason for this narrowing of scope, is that he thinks the Rule of Law does not obtain in an age of ‘monopoly capitalism.’ (Hayek would agree!) On Mannheim’s view monopoly capitalism precedes and leads into fascism. (A view now commonly associated with Karl Polanyi (recall here; here.) It's easy to forget that the Hayekian road to serfdom is, in part, an intended alternative to the Mannheim-Polanyi road to fascism.
As an aside, in broader context of the passage, Mannheim is treating the possibility that social structures may be changing dramatically such that the (to use Hayek’s language) the very rules of the game, or even the game itself, is fundamentally changing. Mannheim recognizes that for individuals living through such a transition circumstances may be quite bewildering (this actually echoes an observation Adam Smith who likens it 'to being all at once transported alive to some other planet;'); but he also emphasizes that for social scientists it provides an opportunity to learn which social and legal laws are truly eternal and which are epoch specific.
Let me wrap up. Given the conflation between The Constitution of Liberty and The Road to Serfdom in lecture 7 of the Birth of Biopolitics, it wouldn't be surprising if Foucault read themes of the later book back into the earlier one. And this might be thought sufficient to explain why he thinks German neoliberalism is critically responding to Weber's views on capitalism. But this point would come even more naturally to Foucault if he was familiar with Mannheim's Man and Society. For, it is quite clearly a polemical target of Hayek in various places in The Road to Serfdom. And, more important, in some key ways throughout Man and Society, Mannheim's own analysis of capitalism is indebted to Weber and presents itself also as a correction to it. (As I will also show in future posts.) At the moment, however, I can't prove that Foucault would have been familiar with Mannheim's Man and Society. But if he was, I think it would help explain the manner in which he situates the ordos and Hayek.
PS After I posted this post, I learned from Stuard Elden that Foucault read Mannheim's Freedom, Power and Democratic Planning around the time he was working on The Birth of Biopolitics course. To be continued!
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