Hayek’s critique of “positive rights,” including education, positions him at odds with contemporary thought. Even as far back as 1948, the United Nations Universal Declaration of Human Rights enshrined education as a “basic right.” Article 26 states:
- 1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
- 2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance, and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
- 3. Parents have a prior right to choose the kind of education that shall be given to their children.
In the decades following World War II, U.S. states amended their constitutions to echo this call for free public education. By 2009, the European Union also recognized education as a right in Article 14 of its Charter of Fundamental Rights. Clearly, Hayek’s perspective diverges sharply from the mainstream, rooted in his philosophical convictions, which merit deeper exploration.
Positive and Negative Rights
At the core of Hayek’s argument is his distinction between positive rights and negative rights, which fundamentally shapes his rejection of education as a right. Negative rights—like freedom of expression and religion—serve to limit state power while protecting individual liberties. These rights manifest as “the state shall not…” Conversely, positive rights impose specific obligations on the state. The right to vote exemplifies a positive right; it cannot exist without state facilitation, unlike free speech, which individuals can exercise independently.
Positive rights necessitate a consenting counterpart willing to fulfill these obligations, often seen in private associations rather than the political sphere. For instance, a country club member might have positive rights defined by the club’s bylaws, which the club must honor. In family dynamics, a child’s right to basic needs—food, clothing, shelter—holds meaning, as parents are the de facto consenting parties.
However, political rights call for collective support for governmental structures. Hayek argues that while citizens have legitimate claims on government services, determining what those services should be remains contentious. He asserts that government should use its taxing authority to provide services the market cannot adequately deliver, such as public goods and law enforcement.
Yet, Hayek warns against the slippery slope where the acceptance of legitimate government aims leads to demands for a broad array of socially desirable goods under the vague banner of “social justice.” He observes:
- To the negative rights which are merely a complement of the rules protecting individual domains and which have been institutionalized in the charters of organization of governments, and to the positive rights of the citizens to participate in the direction of this organization, there have recently been added new positive ‘social and economic’ human rights for which an equal or even higher dignity is claimed. These are claims to particular benefits to which every human being as such is presumed to be entitled without any indication as to who is to be under the obligation to provide those benefits or by what process they are to be provided. (LLL 303).
In Hayek’s view, “society” lacks a clear counterparty. Thus, the UN’s declaration of rights—employment, education, cultural life—while appealing, lacks the necessary structure to be considered genuine rights enforceable in court. This perspective leads Hayek to critique the notion that society can be designed. Instead, he argues, society emerges from the spontaneous interactions of individuals, not through top-down imposition.
Hayek fears that this confusion could undermine the very rights essential for a free society. He articulates:
- To speak of rights where what are in question are merely aspirations which only a voluntary system can fulfil, not only misdirects attention from what are the effective determinants of the wealth which we wish for all, but also debases the word ‘right’, the strict meaning of which it is very important to preserve if we are to maintain a free society (LLL 307).
This belief in positive rights implies a view of society as a structured hierarchy working towards a common goal, rather than a spontaneous order of free individuals. Hayek warns that viewing society as a taxis—a controlled organization—rather than a cosmos—a naturally evolving system—inevitably leads to a loss of individual liberty. He notes that only a totalitarian government can attempt to enforce equal positive rights, and achieving such a vision would come at the cost of personal freedom.
Thus, extending the notion of rights to include education could inadvertently diminish individual liberty. Hayek states:
- Though some of the aims of the welfare state can be achieved only by methods inimical to liberty, all its aims may be pursued by such methods. The chief danger today is that, once an aim of government is accepted as legitimate, it is then assumed that even means contrary to the principles of freedom may be legitimately employed. (CL 376)
Hayek on Education
So, what does Hayek propose regarding education? He views it as a duty rather than a right. He supports the idea that the state can mandate a minimum level of education, such as a high school diploma, even against parental wishes. This requirement alone signals that education cannot be classified as a right, since rights are typically exercised freely without state coercion. Hayek argues that an educated citizenry benefits both the state and its citizens, as democratic societies thrive when their populace is educated (CL 499). Furthermore, education instills shared values, and for citizens, it equips them with necessary skills for a competitive market economy. In cases where parents lack the means to educate their children, government funding should be available, although Hayek insists that direct state operation of schools should be exceedingly rare.
“The distinction of the state’s power to mandate education from the state’s role in providing the education is key to Hayek’s argument.”
Hayek aligns with John Stuart Mill’s assertion that the state should compel a certain level of education for all citizens. However, he emphasizes that while the state can mandate education, it should not serve as the provider. This crucial distinction is often overlooked in the prevailing notion that education is a right.
The “Right” to Education Missing in State Constitutions
Hayek’s concerns about the potential overreach of governmental authority through the supposed right to education find validation in a review of state constitutions. Not one of the 50 U.S. state constitutions explicitly mentions a “right to education.” Instead, they refer to the state’s obligation to provide free public education through government-run schools. Alarmingly, 37 states include “Blaine Amendments” or similar language that restricts funding for non-public primary and secondary education. The idea of a right to education has led to state-sponsored schools, with public education comprising 6-7% of U.S. GDP—outstripping even the retail sector. In many communities, public schools operate as a de facto monopoly, starkly contrasting Hayek’s vision of rare state involvement in education.
Three key issues arise from the current system of state-sponsored education. First, just as no one would want the government as the sole arbiter of news (LLL 419-420), it should not be the only provider of education. Hayek cites Mill’s warning that state-run education can mold individuals to serve the interests of those in power, thereby establishing a “despotism over the mind” (CL 498).
Secondly, there is a fairness issue. Hayek adamantly believes in equal treatment for all citizens. While some families may be satisfied with their local public schools, recent surveys indicate that only 22% of parents view the education system positively, and a mere 8% of teens believe their schools excel at educating them. Families with greater financial resources can seek alternatives, leaving disadvantaged families at risk of receiving subpar education.
Thirdly, the results are troubling. A recent report for the 2024 school year revealed that only 28% of 8th grade public school students demonstrated proficiency in math, while just 30% achieved proficiency in reading. In light of such statistics, is it reasonable to assert a right to free public education when less than a third of students meet basic proficiency standards? Alarmingly, lawsuits are emerging where former students are suing their public schools for negligence and breach of an implied contractual obligation to provide a standard of education. Children who fail to achieve proficiency in reading and math face diminished lifetime earning potential and limited opportunities for socio-economic mobility—an outcome Hayek would deem profoundly unjust.
Ultimately, the proclaimed right to education has created an educational monopoly for countless students, resulting in poor academic outcomes and diminished future earnings. The Hoover Institution estimates a staggering $31 trillion loss in GDP attributable to learning deficits from the pandemic alone. A potential remedy to this disheartening scenario would be to advocate for parental choice in education, as articulated in Article 26.3 of the UN Declaration. While Hayek remains critical of the UN Declaration, the assertion of parental rights aligns with his philosophy, as these rights help curtail state coercion while acknowledging that the government can mandate education, allowing the market to provide diverse options for parents.
Footnotes
[1] James Diamond, Jocelyn Durand, and Charlie Rolason, “Vast majority of Americans believe students deserve an equal opportunity to pursue higher education.” Ipsos. July 11, 2022.
[2] References are to the Collected Works of Hayek, University of Chicago Press, volume XVII, The Constitution of Liberty, abbreviated as CL, edited by Ronald Hamowy, and volume XIX, Law, Legislation, and Liberty, abbreviated as LLL, edited by Jeremy Shearmur.
[3] Alli Aldis, “New K12 Teacher Survey Indicates Morale Crisis Among Educators.” EdChoice. May 7, 2024.
[4] Claire Cain Miller, “Today’s Teenagers: Anxious About Their Futures and Disillusioned by Politicians.” New York Times. January 29, 2024.
[5] NAEP Report Card: Mathematics, 2024. Grade 8. Nation’sReportCard.gov.
[6] NAEP Report Card: Reading, 2024. Grade 8. Nation’sReportCard.gov.
[7] Eric Hanushek and Bradley Strauss, “A Global Perspective on US Learning Losses.” Hoover Institution. February 14, 2024.
*Mike Kane is a historian of philosophy interested in political theory, political economy, and the relationship of philosophy and economics.
