A little more than a year ago, Random House and the Mario Puzo literary estate announced the winner of a contest for the rights to pen another Godfather novel. Mark Winegardner, acclaimed novelist and creative writing instructor at Florida State, was awarded the honor, though given the success of the series -- both in book and movie form -- I imagine it was as much burden as reward.

Now, I am a Godfather fanatic. Nonetheless, I've been a bit nonplussed at the thought of having another entry into the Corleone family saga thrown onto bookstores nationwide. But there it is, released today: The Godfather Returns. For those wondering where the book fits in on the timeline, it apparently fills the gaps between the movies (i.e. between parts one and two and two and three).

Here are some related links:
(1) Revisiting a Potboiler You Can't Improve?
(2) Author Spins Yarn in 'Godfather' Sequel
(3) 'The Godfather' Resurrected
(4) The Godfather Returns Website

In a comment over on my home blog, Julian reminds me of Hayek's approving mention of Rawls's method for thinking about principles of justice. This led me to look it up again. It's in Law, Legislation, and Liberty, Volume 2: The Mirage of Social Justice, p. 100:

Before leaving the subject [of 'social' or distributive justice, ideas that Hayek finds muddled and misleading] I want to point out once more that the recognition that in such combinations as 'social', 'economic', 'distributive' or 'retributive' justice the term 'justice' is wholly empty should not lead us to throw the baby out with the bath water. Not only as the basis of the legal rules of just conduct is the justice which the courts of justice administer exceedingly important; there unquestionably also exists a genuine problem of justice in connection with the deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book. [Vol 2 of LL&L was published in 1976.] The fact that I regret and regard as confusing is merely that in this connection he employs the term 'social justice'. But I have no basic quarrel with an author who, before he proceeds to that problem, acknowledges that the task of selecting specific systems or distributions of desired things as just must be 'abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer. Rather the principles of justice define the crucial constraints which institutions and joint activities must satisfy if persons engaging in them are to have no complaints about them. If these constraints are satisfied, the resulting distribution, whatever it is, may be accepted as just (or at least not unjust).' This is more or less what I have been trying to argue in this chapter.

The Rawls quote is from his essay "Constitutional Liberty and the Concept of Justice" in Nomos IV, Justice, 1963, p. 102. Hayek follows up the citation in his as always illuminating footnotes thus:

. . . where the passage quoted is preceded by the statement that 'It is the system of institutions which has to be judged and judged from a general point of view.' I am not aware that Professor Rawls' later more widely read work A Theory of Justice (Harvard, 1971) contains a comparatively clear statement of the main point, which may explain why this work seems often, but as it appears to me wrongly, top have been interpret support to socialist demands, e.g., by Daniel Bell, 'On Meritocracy and Equality', Public Interest, Autumn 1972, p. 72, who describes Rawls' theory as 'the most comprehensive effort in modern philosophy to justify a socialistic ethic.'

Hayek is right. Rawls, at least the early Rawls, seems to me to be nowhere near a socialist or even a continental-style social democrat. He strikes me as a fairly traditional classical liberal working to reconcile the contemporary game-theoretic conception of rational choice with traditional contractarian theorizing and Kant.

Hayek somewhat earlier cites another passage from the same Rawls Nomos essay (which I really must read!) that casts Rawls in a similar classical liberal light. Here's Rawls:

If one assumes that law and government effectively act to keep markets competitive, resources fully employed, property and wealth widely distributed over time, and maintains a reasonable social minimum, then, if there is equality of opportunity, the resulting distribution will be just or at least not unjust. It will have resulted from the workings of a just system . . . a social minimum is simply a form of rational insurance and prudence.

Here, as in other places, Rawls seems to characterize the social minimum, the safety net, as the price the wealthier must prudently pay for the stability of the order from which they benefit. At other times, Rawls makes more of the idea of fairness-as-reciprocity as a core aspect of the sense of justice, and argues that the motivation to pay into the treasury to fund the safety net is not merely prudential, but is rooted in a more distinctively moral motivation. I think this is one of many instances where Rawls's good, clear rat choice contractarianism comes into tension with his penchant for Kantian moral psychology.

My total baseless conjecture is that Rawls's students and some colleagues, who were far to Rawls's left politically, slowly drew him further left toward a more euro-style social democrat point of view. I'm told that Rawls was a model of intellectual openness, not at all dogmatic, which would make him especially prone to reciprocal influence from his interlocutors. Early Rawls's quasi-positivist naturalism and classical contractarianism was discouraged by his milieu while his Kantianism, and especially his Kantian moral psychology, was encouraged. So he abandons the idea that the theory of justice is a part of the theory of rational choice.

Rawls's students seem to be far more vehement in their opposition to Humean moral psychology than in their interest in the contractarian conception of a social order. They seem more interested in coming up with an arguments to the effect that we're obliged to pay taxes even if we don't want to (the claims of justice are rationally INESCAPABLE, dammit!) than in exploring the general nature of a theory that could justify something like taxation in terms of its role in maintaining a viable social order. They seem to have co-opted a lot of Rawls's language, and methodological apparatus, but left most of his core contractarian logic behind.

So here's my unanswerable question--get out your possible world telescopes: What does the late Rawls look like in a world in which he had folks like Nozick, Lomasky, and Schmidtz as his prominent students, rather than folks like, say, Scanlon, Cohen, Estlund, and Korsgaard? Does he look more like the Rawls that Hayek sees and likes?

[Crossposted on The Fly Bottle.]

It is easy to pick on a David Brooks column for being superficial and ironing over crucial sociological wrinkles. Phoebe Maltz does it here (when not picking on this blog).

Brooks's contention is that the supposedly new live-and-let-live sexual climate on college campuses is a cause for the lack of moral education in universities. Bracket the question of whether sexual openness and freedom really instill less moral courage than the alternative. Phoebe is right that romantic ambiguity is nothing new.

C.F., my sister's much earlier post:

Also, harboring nostalgia for some golden age of courtship, when the rules were clear and the relations between the sexes were as smooth as single-malt is a little problematic.

To say that the purpose of courtship is to find someone to marry works, sure--as long as you define courtship as seeking a marriage partner. But there have always been less visible, parallel (and often horizontal) activities that have gone right alongside (before, during, and after) the lawful-mate-hunt, and which have often been conducted according to an egregious double standard that penalizes women but not men for participating in them. You can call it a crime, you can call it hooking-up, you can call it a bedroom farce, but the pursuit of sex does happen, always has, and it seems capricious to say that whatever we mean by "dating" it isn't that. (If anything is being corrupted it's the language, because "dating" is just a stupid word.)

But beyond that, I really haven't the faintest idea when and where this supposedly uncorrupted era of courtship was, except between the covers of a Jane Austen novel (which heaven knows is where I'd like to live, or at least to spend my vacations). Sara says, "It used to be that a young man would have to wait for an invitation from the young lady or her family before he could call on her"--well, when and where was this the case? And among what classes? Are we talking about Mozambique here? Mid-19th century Manchester factory workers? How about among the--many, many--prostitutes of Victorian London? At the court of Charles II? Colonial New England (hotbed of that quaint courtship custom, bundling)? Was this the way a French scullery maid conducted her affairs?

I live about two hours south of Turkestan, which is home to a mausoleum that’s the holiest Muslim site in Kazakhstan, though competition for that title isn’t stiff. Since I speak Kazakh, I live almost entirely within their Muslim culture. I took this for granted as Kazakhstani life, as I did seeing my village’s mosque silhouetted against the beautiful mountains of my first home, until I visited a friend who livd with a Russian host family. Logically, I shouldn’t have been surprise but I was, to see a crucifix on the wall and a Russian Orthodox cross around his host father’s neck. I forget too often about the other cultures here, with whom I can’t communicate because of the language barrier (not speaking Russian). Only in the culture in which I live to all houses I’ve seen have an embroidered carpet wall-hanging with a picture of Mecca and words in Arabic; most also have a round blue talisman against the Evil Eye. But now is the end of Ramadan, so here are a few musings on what I have seen.

I have followed the Ramadan fast, though I break the rules by drinking water during the day. I did it out of respect for my family’s customs, and they clearly appreciate it. It didn’t turned out to be as hard as I feared, and a sort of bonding experience. I started it unable to remember the last time I went thirteen waking hours without eating; well, the last time I did that without having some sort of intestinal problem that can only be discussed in Peace Corps company ( I.e., So, what are your symptoms? Um huh, yeah... Sounds like what Phil had a few months ago. They thought at first it might be giardia, but the Cipro didn’t do anything. If it’s like his, it should be over in two weeks. He lost ten pounds on it... Say, could you pass me another beer and some of the pickle-flavored croutons). The first days were the hardest, but then the hunger only really came at about 11 am, and then for the last hour or two before sundown. Things also got easier after after the time change, when my host family realized that the sun now set an hour earlier but did not realize that it also rose an hour sooner. I realized this after a few days of eating alone at 5:30 a.m.

The month that had began with children singing Ramadan carols in the streets has now ended with the Eids, a time of joyous guests dropping into drink chai during the day, and much visiting. Today three men in nice suits showed up while I was the only one home, requested for water for their car’s radiator, asked where my host father was, explained that one was my youngest host brother’s grandfather (but he was neither my host mother’s nor host father’s father), called my host father on his cell when I still gave them a look of confusion, and then came into the house saying they were there to study the Koran. I think they may have used those last simple words after first saying they had come to pray, for they left after two minutes of praying aloud, during which time I tried to decide if it would be too rude of me to not offer these three strange men the tea for which there was not yet hot water. Anyway, more generally about what I’ve seen of Islam and Kazakhs. . . .

Islam in Kazakhstan is the moderate Central Asian Islam, and Kazakhstan has even less of the minority fundamentalism that’s popped up in some other Republics, like Uzbekistan. The most common act of devotion I can witness is gesture many people make as they pass a graveyard. The gesture is a washing of both hands over the face; it also done at some moments during prayers. From what I see, the religion seems to have been incorporated into the culture; in conversation, people do not always make separate these two factors as Americans often would.

Why are you Muslim?
“Because I am a Kazakh. The Kazakhs are Muslim.”

Why do you fast during Ramadan?
“Because it is a Kazakh tradition.”

If my impression that the Kazakh culture has taken Islam into it and made Islam a part of it is true, then perhaps this gives the culture the ability to allow practices that other forms of Islam do not permit. I see things I find different or unexpected, and I don’t know what the cause is, other than tradition.

For starters, there’s a lot of vodka. The rate of alcohol drinking rose to its present level, which is verging on a problem, during Soviet times, but the Kazakh culture allowed drinking before those days. Also, pork isn’t entirely taboo. After learning that I eat it, my two host families in Arys both offered me a cold, shimmering slab of pure pork fat (uh, no thanks). I asked my co-teacher about this. She gave me a rare look of ‘yes, I agree with you that this sounds illogical,’ and suggested that pork fat was ok because it could be bought at the bazaar and no preparation but slicing was needed. I personally don’t care about untangling that logic so much as I do about figuring out where the pork tenderloin of those pigs has been sent off to.

But really, I know so little about Islam that it is hard for me to see what might be Muslim and what might be Kazakh, and even what might be Soviet, as I’ve heard the trend towards engraved images of the deceased on gravestones is. I’d love to have a copy of the Koran in English (and also one of the beautiful illuminated copies in Arabic, but that I can find for myself at the Almaty bookstore), but I suppose I’d also need the hadith to study.

I understand, vaguely, that Islam has different requirements for men and women, and the women’s requirements can essentially be fulfilled at home, while the men’s requirements include the burden of public prayer. But I only really see what’s in the home, and only really know of what happens in the mosques from talking with a few Imams. Women here very rarely attend mosques, even though there are laced-off partitions in which they may sit. Depending on with whom you speak, mosques may or may not offer classes, akin to Sunday School, about Islam. And I think there is a general lack of education, as I saw with the two English teachers at my school who both fasted, but who neither knew the reason for the Ramadan fast. My host family, who seem to be more conservative and devout than average for my town, explained that it was for health and purification. This, too, was what I gathered from reading books at my host grandfather’s house that serve as self-teaching guides about the Koran (fasting for health?). My host father says he learned about Islam by studying on his own; he doesn’t cite his father or his family as his teacher.

This I suppose is the strangest to me, how things I would expect to be an intergenerational family affair are simply the province of the elders. For one Ramadan party (perhaps not the right word, but I don’t know a better one), my host family invited the grandfathers, or elders, of their hometown. They ate in the room for the most respected guests, and left it to go to a more private room for prayer, shutting the door to block sound. Even my own host father and brothers did not join them there. How is the knowledge passed down to the children, even to the sons? My host father asked my youngest brother, who is 9, what his religion and the name of its followers was, and who his god and his prophet were; the boy did not know these answers. Perhaps it was the beginning of his religious education. And how do the women learn, if they are even excluded from prayers in their own houses? I know there is at least one small group of women in my town who study the Koran together, but daughters don’t go to such gatherings. When the family was together at meals during Ramadan, the father always said the short blessing, speaking in memorized Arabic; when he was gone, the mother silently read the blessing. Did someone or something forbid her to speak it, or did she not know it by heart, or did simply not want to? (I worry about asking too many questions about gender roles, so sometimes I lay off for a bit).

But I do want to know how much of the gender roles in Kazakh society is dictated strictly by religion, and how much by traditional culture, if the two can ever be separated. A comparison to the Buddhist days seems too far gone to be worthwhile, and more recently, while the Soviets pushed equality between their citizens, they also pushed for a high birthrate (President Nazarbayev has continued that campaign, at least among the ethnic Kazakhs). And perhaps I’m just in a cantankerous mood brought on from living in a patriarchal place amid pitying reactions from those who find that my parents have three daughters and no sons (one of the words for sons is the also the only word for children; to my ear, I hear that my parents have three daughters and no children, and so sometimes I reply with the protest that they do have three children, we three sisters).

The father of a house is boss: Wife/daughter/ son, come and bring me whatever it is I want so that I do not have to stand and walk the three or ten feet to fetch it myself. My other co-teacher did not attend her friend’s son’s wedding party, despite leaving class (!) to go prepare all the salads and finger-food trays that a party for five hundred requires. Her husband had to work, and he does not permit her to attend parties without her. I asked the mother of my former host family if I could call the Peace Corps in Almaty, long-distance, on the phone. She said I had to wait for her husband to come home from work so he could type in the code that unlocks long-distance privileges; he had not told her what the code was. When I replied, “But you’re his wife!” the women around all laughed at my reaction. Yes, laugh at my response if you’d like, but I don’t find this situation humorous. Does he really trust his wife so little, or not care that he makes it more difficult for her to reach her family who live in other villages? Sigh. Useful things I learned at the language camp last week included how to say, with the future intentional tense and a present participle verb form, that I do not intend to marry a Kazakh husband; unfortunately, I did not learn how to use this sentence inoffensively in polite company.

But I don’t know where I’d meet one, other than the young men about whom I complain, because the sexes don’t intermingle as much as they do in America. Among my older school children, the girls and boys hang out separately, even though they all share the close friendly ties of having had all classes together for years. Locals tell me that I cannot simply be friends with a young Kazakh man, for it simply isn’t done. With all this separation, I like to ask women where they met their husbands. ‘At university’ is decently common, but roughly on par with ‘at a cafe,’ or ‘at a disco.’ Wherever it is, it happens young; 25 without a husband is an old maid, and nearing 23 without a prospect in sight is perilous. Those who do not marry their first boyfriend (or girlfriend) tend to marry their second. In the villages and towns, female virginity before marriage is still required; the in-laws check the sheets after the wedding night, and will possibly throw the bride out if she does not pass inspection.

Unfortunately, I think this early marriage leads to something not sanctioned by Islam: adultery. There is a lot of it here, by both locals’ and volunteers’ accounts, though I don’t know quantitatively how much. What is the percentage of adultery in America, what is the percentage in Kazakhstan, and how much does it have to be before it passes from shameful to ‘a lot’? I gather that if I were a fly on a wall, I’d hear as many jokes and snide comments about it as they are puns and accusations of cuckolding in Shakespeare. That a husband, particularly one with work that takes him from home, has a mistress seems to be expected, though it would be hard many women in a small town or a village could entertain anyone without all the neighbors soon noticing. So far, divorce seems to be more of a stigma, and divorced spouses (at least, divorced women) have trouble finding new partners. It is also a great risk: the pension system is also too meager a support, and the elderly essentially need to live with a son who will provide for them. The trend currently is to stay together, but with a significant rate of unfaithfulness. If this continues, an even greater problem may follow. Kazakhstan is just south of Russia and its HIV epidemic, but for now few people are infected, primarily the prostitutes in the cities. That’s no prescription for stability. In the face of this, America’s divorce culture seems an improvement, especially if there’s more honesty, a split that admits the problems before the affairs have a chance to begin.

Of all chains. . . I did not know, when I started to write about Ramadan, that I would end with this. I think this is more a result of the thoughts that have been on my mind than of anything else.

* * *

A phrase spoken mostly by Kazakhs in the north that is absolutely unrelated to anything:

When people are disappointed by a surprise, they utter “Ma!” (that ‘a’ should be a schwa). It seems fitting that students protesting homework should sound like a flock of discontented sheep.

The British government has today unveiled a ban on smoking in enclosed public spaces in England. Generally, I don't support smoking bans in really any case, even though I hate smoking. Personal autonomy and all that, you know.

But I will say that there's a certain justice in the form the ban has taken. The only kinds of restaurants or bars where you can still smoke, you see, are those where food is warmed in microwaves. But since people doused in smoke can't taste their food anyway, I can't see why would mind. Even bureaucrats can make good jokes, sometimes.

Matthew Yglesias speculates that a Supreme Court repudiation of Roe would be bad because it would have to be either 1) a repudiation of some of the unenumerated rights cases (he calls them "privacy" cases, but I think that's what he means) or 2) a grant of constitutionally personhood to the fetus that allows it to overcome any unenumerated right, and therefore brings judicial imposition of a nationwide abortion ban.

Re: 1)-- the Supreme Court has at hand, and has used, a wide variety of different doctrines for enumerating and making good on unenumerated rights. Justice Scalia has joined an opinion striking down a law that violated the fundamental "right to travel" of welfare recipients; Justice Thomas has joined the Court in striking down a law that infringes on the constitutional privacy right to keep grandparents away from one's children (although he suggested it might be better done under the Privileges and Immunities Clause). So even if the President achieves his alleged goal of stacking the Court with Thomas- and Scalia- sympathizers, plenty of rights remain.

Still, Yglesias is right that such a Court would probably roll back a few other constitutional rights with Roe/Casey; I suspect the sexual autonomy rights of Lawrence would be doomed, but I doubt much else would go. Even under the restrictive historical tests of Thomas's Saenz v Roe dissent Scalia's Michael H plurality and Rehnquist's Washington v Glucksberg majority, the family and marital privacy cases are unlikely to topple.

[Note that it's possible that the elimination of Roe would push constitutional discourse rightward, making acceptable eliminations that Thomas and Scalia currently don't champion. But it's also possible that a Court that decided to "finally" pull itself out of the abortion debate would decide to leave the other unenumerated cases to stand, even if it thought they were wrongly-decided.]

But of course, those unenumerated rights cases aren't all that's meant by privacy. Privacy also encompasses the fourth amendment no-searches-and-seizures cases, and there I suggest that some anti-Roe Justices might be quite amenable to Yglesias's sensibilities. Thomas suggests in Indianapolis v Edmond that drug checkpoints are probably unconstitutional; Scalia wrote the Court's opinion in Kyllo (joined by Thomas among others) striking down the use of heat-imaging technology to search for marijuana; see also United State v. Hubbell where Thomas, joined by Scalia, suggested that subpoenaing somebody's private papers was probably against the original understanding of the Fifth Amendment. I could go on, and am tempted to, since this game is kind of fun.

The point is really this: Unless one takes the view (which I don't) that all Supreme Court Justices who would vote to overturn Roe v Wade are old-guard reactionaries using doctrine and history as a masque for their machinations, the actual civil liberties implications likely to attend an anti-Roe Supreme Court are not that predictable. (This is even more so given the frequency with which Thomas and Scalia-- whose names are too frequently used interchangeably-- disagree on substantive matters of law or philosophy.)

[One more consideration: The wonderful thing about the doctrinal morass that is un-enumerated rights law is that almost all of those rights are subject to judicial balancing tests where state interests are assigned a so-called "compelling"ness, and then measured up against the right in question. So without a major doctrinal revolution a Court could vaproize Roe while leaving the rest of the edifice in place by finding that states had a sufficiently compelling interest in protecting potential human life if they wished to. Other than Thomas's Grutter concurrence/dissent, I know of no rule that states are actually constitutionally "compelled" to do things that have been termed "compelling," so that mushy path would lead to an eradication of Roe without any doctrinal shift or judicial abortion ban. My own tentative opinion is that the idea of judicially-cognizable compelling/important/legitimate interests is intellectually bankrupt (except insofar as precedent has lent it meaning), but it is common.]

[One last thing: Yglesias suggests in his post that the comparison of Roe with Dred Scott (see, most famously, Scalia's Casey dissent) gives further credence to the notion that an anti-Roe Court would not return abortion to state legislatures but rather forbid abortion by judicial fiat. But during the time that Dred Scott was decided, before the 13th, 14th, and 15th amendments, the arguments that slavery was constitutionally forbidden had little legal purchase. So if the analogy is really apt (and I doubt it: there will be no seccession over abortion), it would probably follow that abortion's not going to be outlawed by constituional fiat without a constitutional amendment. Which is not going to happen any time soon.]

I was reading Hayek's essay "The Errors of Constructivism" today (in New Studies), and I was struck by, well, by just how great Hayek is, and how his thinking is both well and ill suited for integration with contractarian normative theorizing, which is my favorite kind of normative theorizing. Please allow me to waive any implied guarantees of cogency, and to indulge in some musings about Hayekian anti-constructivism . . .

Hayek is clear, and I'm sure right, about the fact that the principles or rules of behavior that account for regularities in individual conduct and macro-level social order are to some degree inscrutable. We are guided by "knowledge how" and not "knowledge that"

What I want to show is that men are in their conduct never guided exclusively by their understanding of the causal connections between particular known means and certain desired ends, but are also by rules of conduct of which they are rarely aware, which they have not consciously invented, and that to discern the function and significance of this is a difficult and only partially achieved task of scientific effort.

Now, Hayek is talking here about the theorist, too. The contractarian theorist, for instance, can't just kick back in her chair and think about what rules her imaginary rational agents would choose to be governed by, for we, the theorists, are not especially aware of the principles of our own conduct, and can only partially understand how those principle contribute to social order, if they do, and so surely we cannot say what our fictional fully rational proxies would endorse.

So Hayek leaves us properly skeptical of the possibility of churning out principles of just conduct from a constructive procedure, i.e., an elaborate Rawlsian thought experiment.

Nevertheless, Hayek is incredibly strong on what I take to be a primary element in distinctively contractarian reasoning, probably exemplified best in Hobbes and Hume (and in Buchanan, Rawls, and Gauthier in the last century)--the idea that individual actions can combine according to a particular logic (the logic of interpendent expectation and choice--game theory) to create normatively interesting macro-level properties, and that we should evaluate common rules of conduct in terms of their role in supporting or undermining these properties.

Hayek:

The rules we are discussing are those that are not so much useful to the individuals who observe them, as those that (if they are generally observed) make all the members of the group more effective because they give them opportunities to act within a social order.

And later:

It was the great achievement of economic theory that, 200 years before cybernetics, it recognized the nature of self-regulatiing systems in which certain regularities (or, perhaps better, 'restraints') of conduct of the elements led to constant adaptation of the comprehensive order to particular facts, affecting in the first instance only the individual elements.

So Hayek endorses the contractarian way of thinking about the relation of rules to order, micro to macro. Rules are justified in terms of their contribution to order. And our reasons to adhere to these rules is not grounded in their immediate benefit to us, but in the benefit we derive from participation in the order they establish. He is, however, skeptical about our ability to know what that relation is in particular cases. And so he counsels that we not mess with them--much. Hayek's conservativism flows from his ideas about social evolution, which I take to be the weakest part of his social philosophy.

However, Hayek doesn't think he really helps the conservative too much in the end:

I must at once warn you, however, that the conservatives among you, who up to this point may be rejoicing, will no probably be disappointed. The proper conclusion from the considerations I have advanced is by no means that we may confidently accept all the old and traditional values. Nor even that there are any values or moral principles, which science may not occasionally question. The social scientist who endeavours to understand how society functions, and to discover what may be improved, must claim the right critically to examine, and even to judge, every single value of our society. The consequence of what I have said is merely that we can never at one and the same time question all its values

The last is a Neurathian/Quinean "can't get off the raft" point that I rather like. Hayek stresses it again later:

The only standard by which we can judge particular values of our society is the entire body of values of that same society. More precisely, the factually existing,imperfect order of actions produced by obedience to these values provides the touchstone for evaluation.

And then, immediately afterward, one can catch a whiff of Rawlsian reflective equilibrium (this was a lecture from 1970, by the way):

Because prevailing systems of morals or values do not always give unambiguous answers to the questions which arise, but often prove to be internally contradictory, we are forced to develop and refine such moral systems continuously. We shall sometimes be constrained to sacrifice some moral value, but always only to other moral values we regard as superior. We cannot escape this choice, because it is part of an indispensible process.

However, given Hayek's skepticism about our ability to kick back and weigh and work through the relevant trade-offs in our rather limited heads, we need to substitute some external social process that can test and adjudicate conflicting moral principles. (Even Rawls, it is very much worth pointing out, says that reflective equilibrium is only achieved at the ideal limit. I wonder why he doesn't take this point seriously, as Hayek did.)

So here is a Hayekian argument for political federalism (little experiments in governance) and rights of exit, along with a well-functioning system of evolving common law. These are mechanisms that we might think have a tendency to produce principles in a kind of (not reflective, in the head, but social, enacted) equilibrium with one another.

I take some of the deliberative democrats to have been similarly looking for a procedure, a mechanism, for arriving at principles of just conduct--for a way to get the the method of reflective equilibrium out of the head and into the world. But democratic choice procedures are singularly well-suited for delivering bad answers. (Do deliberative democrats, Kerry voters all, I'm sure, really think the problem is just that there's not enough deliberation?) The Hayekian post-Rawlsian looks instead to federalism, exit, and the common law. There may not be many of us, but there should be.