Law, Legislation and Liberty
book by Friedrich von Hayek
Vol. 1 : Rules and Order (1973) edit
Ch. 1 : Reason and Evolution edit
- There are two ways of looking at the pattern of human activities which lead to very different conclusions concerning both its explanation and the possibilities of deliberately altering it. Of these one is based on conceptions which are demonstrably false, yet are so pleasing to human vanity that they have gained great influence and are constantly employed even by people who know that they rest on a fiction, but believe that fiction to be innocuous. The other, although few people will question its basic contentions if they are stated abstractly, leads in some respects to conclusions so unwelcome that few are willing to follow through to the end.
The first gives us a sense of unlimited power to realize our wishes, while the second leads to the insight that there are limitations to what we can deliberately bring about, and to the recognition that some of our present hopes are delusions. Yet the effect of allowing ourselves to be deluded by the first view has always been that man has actually limited the scope of what he can achieve. For it has always been the recognition of the limits of the possible which has enabled man to make full use of his powers.
- In civilized society it is indeed not so much the greater knowledge that the individual can acquire, as the greater benefit he receives from the knowledge possessed by others, which is the cause of his ability to pursue an infinitely wider range of ends than merely the satisfaction of his most pressing physical needs. Indeed, a ‘civilized’ individual may be very ignorant, more ignorant than many a savage, and yet greatly benefit from the civilization in which he lives.
- The fact that an increasing number of social scientists confine themselves to the study of what exists in some part of the social system does not make their results more realistic, but makes them largely irrelevant for most decisions about the future. Fruitful social science must be very largely a study of what is not: a construction of hypothetical models of possible worlds which might exist if some of the alterable conditions were made different. We need a scientific theory chiefly to tell us what would be the effects if some conditions were as they have never been before. All scientific knowledge is knowledge not of particular facts but of hypotheses which have so far withstood systematic attempts at refuting them.
- The errors of constructivist rationalism are closely connected with Cartesian dualism, that is with the conception of an independently existing mind substance which stands outside the cosmos of nature and which enabled man, endowed with such a mind from the beginning, to design the institutions of society and culture among which he lives. The fact is, of course, that this mind is an adaptation to the natural and social surroundings in which man lives and that it has developed in constant interaction with the institutions which determine the structure of society. Mind is as much the product of the social environment in which it has grown up and which it has not made as something that has in turn acted upon and altered these institutions. It is the result of man having developed in society and having acquired those habits and practices that increased the chances of persistence of the group in which he lived. The conception of an already fully developed mind designing the institutions which made life in society possible is contrary to all we know about the evolution of man.
- Thus constructivist rationalism, in its endeavour to make everything subject to rational control, in its preference for the concrete and its refusal to submit to the discipline of abstract rules, comes to join hands with irrationalism. Construction is possible only in the service of particular ends which in the last resort must be non-rational, and on which no rational argument can produce agreement if it is not already present at the outset.
Ch. 2 : Cosmos and Taxis edit
- It would be no exaggeration to say that social theory begins with—and has an object only because of—the discovery that there exist orderly structures which are the product of the action of many men but are not the result of human design.
- This particular function of government is somewhat like that of a maintenance squad of a factory, its object being not to produce any particular services or products to be consumed by the citizens, but rather to see that the mechanism which regulates the production of those goods and services is kept in working order.
Ch. 3 : Principles and Expediency edit
- Individual freedom, wherever it has existed, has been largely the product of a prevailing respect for such principles which, however, have never been fully articulated in constitutional documents. Freedom has been preserved for prolonged periods because such principles, vaguely and dimly perceived, have governed public opinion. The institutions by which the countries of the Western world have attempted to protect individual freedom against progressive encroachment by government have always proved inadequate when transferred to countries where such traditions did not prevail.
- Although probably all beneficial improvement must be piecemeal, if the separate steps are not guided by a body of coherent principles, the outcome is likely to be a suppression of individual freedom.
- The preservation of a free system is so difficult precisely because it requires a constant rejection of measures which appear to be required to secure particular results, on no stronger grounds than that they conflict with a general rule, and frequently without our knowing what will be the costs of not observing the rule in the particular instance. A successful defence of freedom must therefore be dogmatic and make no concessions to expediency, even where it is not possible to show that, besides the known beneficial effects, some particular harmful result would also follow from its infringement. Freedom will prevail only if it is accepted as a general principle whose application to particular instances requires no justification. It is thus a misunderstanding to blame classical liberalism for having been too doctrinaire. Its defect was not that it adhered too stubbornly to principles, but rather that it lacked principles sufficiently definite to provide clear guidance, and that it often appeared simply to accept the traditional functions of government and to oppose all new ones. Consistency is possible only if definite principles are accepted. But the concept of liberty with which the liberals of the nineteenth century operated was in many respects so vague that it did not provide clear guidance.
- Utopia, like ideology, is a bad word today; and it is true that most utopias aim at radically redesigning society and suffer from internal contradictions which make their realization impossible. But an ideal picture of a society which may not be wholly achievable, or a guiding conception of the overall order to be aimed at, is nevertheless not only the indispensable precondition of any rational policy, but also the chief contribution that science can make to the solution of the problems of practical policy.
- The role of the lawyer in social evolution and the manner in which his actions are determined are indeed the best illustration of a truth of fundamental importance: namely that, whether we want it or not, the decisive factors which will determine that evolution will always be highly abstract and often unconsciously held ideas about what is right and proper, and not particular purposes or concrete desires.
Ch. 4 : The Changing Concept of Law edit
- Legislation, the deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching in its effects even than fire and gun-powder. Unlike law itself, which has never been ‘invented’ in the same sense, the invention of legislation came relatively late in the history of mankind.
- Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible.
Ch. 5 : Nomos: The Law of Liberty edit
- The distinct character of the rules which the judge will have to apply, and must endeavour to articulate and improve, is best understood if we remember that he is called in to correct disturbances of an order that has not been made by anyone and does not rest on the individuals having been told what they must do.
- To appreciate the significance of this it is necessary to free ourselves wholly from the erroneous conception that there can be first a society which then gives itself laws. This erroneous conception is basic to the constructivist rationalism which from Descartes and Hobbes through Rousseau and Bentham down to contemporary legal positivism has blinded students to the true relationship between law and government.
- These two different conceptions of the ‘purpose’ of law show themselves clearly in the history of legal philosophy. From Immanuel Kant’s emphasis on the ‘purposeless’ character of the rules of just conduct, to the Utilitarians from Bentham to Ihering who regard purpose as the central feature of law, the ambiguity of the concept of purpose has been a constant source of confusion. If ‘purpose’ refers to concrete foreseeable results of particular actions, the particularistic utilitarianism of Bentham is certainly wrong. But if we include in ‘purpose’ the aiming at conditions which will assist the formation of an abstract order, the particular contents of which are unpredictable, Kant’s denial of purpose is justified only so far as the application of a rule to a particular instance is concerned, but certainly not for the system of rules as a whole.
- The efforts of the judge are thus part of that process of adaptation of society to circumstances by which the spontaneous order grows. He assists in the process of selection by upholding those rules which, like those which have worked well in the past, make it more likely that expectations will match and not conflict. He thus becomes an organ of that order. But even when in the performance of this function he creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. And the outcome of his efforts will be a characteristic instance of those ‘products of human action but not of human design’ in which the experience gained by the experimentation of generations embodies more knowledge than was possessed by anyone.
Ch. 6 : Thesis: The Law of Legislation edit
- As we have seen, rules of just conduct did not need to be deliberately made, though men gradually learned to improve or change them deliberately. Government, by contrast, is a deliberate contrivance which, however, beyond its simplest and most primitive forms, also cannot be conducted exclusively by ad hoc commands of the ruler.
Vol. 2 : The Mirage of Social Justice (1976) edit
Ch. 7 : General Welfare and Particular Purposes edit
- While the comprehensive spontaneous order which the law serves is a precondition for the success of most private activity, the services which the government can render beyond the enforcement of rules of just conduct are not only supplementary or subsidiary to the basic needs which the spontaneous order provides for.
- The function of rules of conduct as a means for overcoming the obstacle presented by our ignorance of the particular facts which must determine the overall order is best shown by examining the relation between two expressions which we have regularly employed together to describe the conditions of freedom.
- Man has developed rules of conduct not because he knows but because he does not know what all the consequences of a particular action will be.
- Most rules of conduct are thus not derived by an intellectual process from the knowledge of the facts of the environment, but constitute the only adaptation of man to these facts which we have achieved, a ‘knowledge’ of them of which we are not aware and which does not appear in our conceptual thought, but which manifests itself in the rules which we obey in our actions.
- The demand for that kind of pellucid order which would satisfy the standards of the constructivists, on the other hand, must lead to a destruction of an order much more comprehensive than any we can deliberately construct. Freedom means that in some measure we entrust our fate to forces which we do not control; and this seems intolerable to those constructivists who believe that man can master his fate—as if civilization and reason itself were of his making.
Ch. 8 : The Quest for Justice edit
- Since only situations which have been created by human will can be called just or unjust, the particulars of a spontaneous order cannot be just or unjust: if it is not the intended or foreseen result of somebody’s action that A should have much and B little, this cannot be called just or unjust.
- The concept of sovereignty, like that of the ‘state’, may be an indispensable tool for international law—though I am not sure that if we accept the concept there as our starting point, we do not thereby make the very idea of an international law meaningless. But for the consideration of the problem of the internal character of a legal order, both concepts seem to be as unnecessary as they are misleading. Indeed the whole history of constitutionalism, at least since John Locke, which is the same as the history of liberalism, is that of a struggle against the positivist conception of sovereignty and the allied conception of the omnipotent state.
Ch. 9 : ‘Social’ or Distributive Justice edit
- When we ask what ought to be the relative remunerations of a nurse or a butcher, or a coal miner and a judge at a high court, of the deep sea diver of the cleaner of sewers, of the organiser of a new industry and a jockey, of the inspector of taxes and the inventor of a life-saving drug, of the jet-pilot or the professor of mathematics, the appeal to 'social justice' does not give us the slightest help in deciding…
- A claim for equality of material position can be met only by a government with totalitarian powers.
- In the Small group the individual can know the effects of his actions on his several fellows, and the rules may effectively forbid him to harm them in any manner and even require him to assist them in specific ways. In the Great Society many of the effects of a person's actions on various fellows must be unknown to him. It can, therefore, not be the specific effects in the particular case, but only rules which define kinds of actions prohibited or required, which must serve as guides to the individual.
- I have come to feel strongly that the greatest service I can still render to my fellow men would be that I could make the speakers and writers among them thoroughly ashamed ever again to employ the term 'social justice'.
Ch. 10 : The Market Order or Catallaxy edit
- The manufacturer does not produce shoes because he knows that Jones needs them. He produces because he knows that dozens of traders will buy certain numbers at various prices because they (or rather the retailer they serve) know that thousands of Joneses, whom the manufacturer does not know, want to buy them.
Ch. 11 : The Discipline of Abstract Rules and the Emotions of the Tribal Society edit
- Socialism is simply a re-assertion of that tribal ethics whose gradual weakening had made an approach to the Great Society possible.
Vol. 3 : The Political Order of a Free People (1979) edit
Ch. 12 : Majority Opinion and Contemporary Democracy edit
- Because we rightly believe in the basic ideal of democracy we feel usually bound to defend the particular institutions which have long been accepted as its embodiment, and hesitate to criticize them because this might weaken the respect for an ideal we wish to preserve. It is no longer possible, however, to overlook the fact that in recent times in spite of continued lip-service and even demands for its further extension, there has arisen among thoughtful persons an increasing disquiet and serious alarm about the results it often produces.
- The tragic illusion was that the adoption of democratic procedures made it possible to dispense with all other limitations on governmental power. It also promoted the belief that the ‘control of government’ by the democratically elected legislation would adequately replace the traditional limitations, while in fact the necessity of forming organized majorities for supporting a programme of particular actions in favour of special groups introduced a new source of arbitrariness and partiality and produced results inconsistent with the moral principles of the majority. As we shall see, the paradoxical result of the possession of unlimited power makes it impossible for a representative body to make the general principles prevail on which it agrees, because under such a system the majority of the representative assembly, in order to remain a majority, must do what it can to buy the support of the several interests by granting them special benefits.
Ch. 13 : The Division of Democratic Powers edit
- It is hardly an exaggeration to say that the character of existing representative bodies has in the course of time been shaped almost entirely by their governmental tasks.
- The legitimacy of the demands for more democracy becomes particularly questionable when they are directed to the manner in which organizations of various kinds are conducted.
Ch. 14 : The Public Sector and the Private Sector edit
- Most of the service functions of government would probably be much more effectively performed and controlled if those local authorities had, under a law they could not alter, to compete for residents. It has been the unfortunate necessity of making central governments strong for the task of defence against external enemies that has produced the situation in which the laying down of general rules and the rendering of particular services have been placed into the same hands, with the result that they have become increasingly confused.
Ch. 15 : Government Policy and the Market edit
- The organized producers of particular commodities or services will in general attempt to justify the exclusive policies by pleading that they can still meet the whole demand, and that, if and when they are not able to do so, they will be fully prepared to let others enter the trade. What they do not say is that this means merely that they can meet the demand at prevailing prices which give them what they regard as adequate profits. What is desirable, however, is that the demand be satisfied at the lower prices at which others might be able to supply—leaving those now in the trade perhaps only an income reflecting the fact that their particular skill is no longer scarce, or their equipment no longer up-to-date. In particular, though it should be as profitable for those in possession to introduce improvements in technique as it is for any newcomers, this will involve for the former risks and often the necessity of raising outside capital which will disturb their comfortable established position and seem not worth while unless their position is threatened by those not content with theirs. To allow the established producers to decide when new entrants are to be permitted would normally lead simply to the status quo being preserved.
Ch. 16 : The Miscarriage of the Democratic Ideal: A Recapitulation edit
- It turns out that the Americans two hundred years ago were right and an almighty Parliament means the death of the freedom of the individual. Apparently a free constitution no longer means the freedom of the individual but a licence to the majority in Parliament to act as arbitrarily as it pleases. We can either have a free Parliament or a free people. Personal freedom requires that all authority is restrained by long-run principles which the opinion of the people approves.
Ch. 17 : A Model Constitution edit
- "Emergencies" have always been the pretext on which the safeguards of individual liberty have been eroded.
Ch. 18 : The Containment of Power and the Dethronement of Politics edit
- Once politics become a tug-of-war for shares in the income pie, decent government is impossible.
- We must shed the illusion that we can deliberately 'create the future of mankind'… This is the final conclusion of the forty years which I have now devoted to the study of these problems…
- There exists no third principle for the organisation of the economics process which can be rationally chosen to achieve any desirable ends, in addition to either a functioning market in which nobody can conclusively determine how well-off particular groups or individuals will be, or a central direction where a group organised for power determines it.
- Nobody with open eyes can any longer doubt that the danger to personal freedom comes chiefly from the left.
Epilogue: The Three Sources of Human Values edit
- Culture is neither natural nor artificial, neither genetically transmitted nor rationally designed. It is a tradition of learnt rules of conduct which have never been ‘invented’ and whose functions the acting individuals usually do not understand. There is surely as much justification to speak of the wisdom of culture as of the wisdom of nature—except, perhaps, that, because of the powers of government, errors of the former are less easily corrected.
- That cultural evolution is not the result of human reason consciously building institutions, but of a process in which culture and reason developed concurrently is, perhaps, beginning to be more widely understood. It is probably no more justified to claim that thinking man has created his culture than that culture created his reason.
- To repeat: mind and culture developed concurrently and not successively. Once we recognize this, we find that we know so little about precisely how this development took place, of which we have so few recognizable fossils, that we are reduced to reconstruct it as a sort of conjectural history in the sense of the Scottish moral philosophers of the eighteenth century. The facts about which we know almost nothing are the evolution of those rules of conduct which governed the structure and functioning of the various small groups of men in which the race developed. On this the study of still surviving primitive people can tell us little. Though the conception of conjectural history is somewhat suspect today, when we cannot say precisely how things did happen, to understand how they could have come about may be an important insight. The evolution of society and of language and the evolution of mind raise in this respect the same difficulty: the most important part of cultural evolution, the taming of the savage, was completed long before recorded history begins. It is this cultural evolution which man alone has undergone that now distinguishes him from the other animals.
- Thus a tradition of rules of conduct, existing apart from any one individual who had learnt them, began to govern human life. It was when these learnt rules, involving classifications of different kinds of objects, began to include a sort of model of the environment that enabled man to predict and anticipate in action external events, that what we call reason appeared. There was then probably much more ‘intelligence’ incorporated in the system of rules of conduct than in man’s thoughts about his surroundings.
- Man did not adopt new rules of conduct because he was intelligent. He became intelligent by submitting to new rules of conduct. The most important insight which so many rationalists still resist and are even inclined to brand as a superstition, namely that man has not only never invented his most beneficial institutions, from language to morals and law, and even today does not yet understand why he should preserve them when they satisfy neither his instincts nor his reason, still needs to be emphasized. The basic tools of civilization—language, morals, law and money—are all the result of spontaneous growth and not of design, and of the last two organized power has got hold and thoroughly corrupted them.
- Man has not developed in freedom. The member of the little band to which he had had to stick in order to survive was anything but free. Freedom is an artefact of civilization that released man from the trammels of the small group, the momentary moods of which even the leader had to obey. Freedom was made possible by the gradual evolution of the discipline of civilization which is at the same time the discipline of freedom. It protects him by impersonal abstract rules against arbitrary violence of others and enables each individual to try to build for himself a protected domain with which nobody else is allowed to interfere and within which he can use his own knowledge for his own purposes. We owe our freedom to restraints of freedom.
- Religious prophets and ethical philosophers have of course at all times been mostly reactionaries, defending the old against the new principles. Indeed, in most parts of the world the development of an open market economy has long been prevented by those very morals preached by prophets and philosophers, even before governmental measures did the same. We must admit that modern civilization has become largely possible by the disregard of the injunctions of those indignant moralists. As has been well said by the French historian Jean Baechler, ‘the expansion of capitalism owes its origins and raison d’être to political anarchy’.
- I can already hear our modern intellectuals hurling against such an emphasis on tradition their deadly thunderbolt of ‘conservative thinking’. But to me there can be no doubt that it was favourable moral traditions which made particular groups strong rather than intellectual design that made the progress of the past possible and will do so also in the future. To confine evolution to what we can foresee would be to stop progress; and it is due to the favourable framework which is provided by a free market but which I cannot further describe here that the new which is better has a chance to emerge.
Quotes about Law, Legislation And Liberty edit
- Law, Legislation and Liberty opened with the avowal that his political ideals had not attracted the support they merited, and that he had failed to bring home that 'the predominant model of liberal democratic institutions' in the Western world, 'necessarily leads to a gradual transformation of the spontaneous order of a free society into a totalitarian system'. To avert this fatal propensity, which Hayek remarked that Schmitt had in his time understood — but also encouraged — more than any other observer, three truths urgently needed to be understood. The first was the fundamental difference between a spontaneous order and a purposive organization, or what Hayek now termed a cosmos and a taxis […]. The rule of law could be preserved only so long as the structure of government reflected a principled separation of the two, according an absolute priority to the maintenance of the first, as the condition of a market economy in a free society, and confining the second to strictly delimited, subordinate functions in the public interest. All current democracies confused these requirements, […] with the intrusion of macro-economic steering and the erection of a welfare state, in the name of an imaginary 'social justice' - a notion without meaning. For the spontaneous order of the market not only precludes equality, it necessarily ignores desert: success within it is undeniably often a mere matter of chance.
But his theory still faced an awkward difficulty in the apparent institutional outcome of the spontaneous social mechanisms it celebrated. For was not the steady erosion of the division between taxis and cosmos, with the seemingly inexorable growth of the welfare state, itself pre-eminently an evolutionary process? To roll it back required — according to Hayek's new prescriptions — drastic redesigning of the structure of the state. Indeed, what he now proposed was nothing less than a dismantling of every known legislature into two novel bodies with different competences and disparate electorates, to correspond to the two ontological kinds of order — the more powerful chamber, guardian of the rule of law as such, striking anyone under the age of forty-five off the voting-roll. This, as even sympathizers could not fail to notice, was a violent attack of the very constructivism his theory had set out to purge. Hayek was unmoved. Such was the price of preserving nomos, or the law of liberty, from the logic of popular sovereignty. Assemblies had to be stripped of their powers of general meddling, in order to secure the limited government — based on the rigour of law, not the licence of consent — which was the only guarantee of freedom. The correct formula, Hayek explained, was demarchy without democracy.
- Perry Anderson, "The Intransigent Right: Michael Oakeshott, Leo Strauss, Carl Schmitt, Friedrich von Hayek" (1992)
- Law, Legislation, and Liberty shows Hayek at his most bold and pioneering. Volume I brilliantly explains the differences between unplanned orders (such as languages and market economies) and planned organizations (such as business firms and centrally planned economies). Volume II explains why the popular idea of “social justice” is meaningless. Volume III contains Hayek’s most ambitious attempt to describe in detail what the legal and political structure of his ideal society would look like.
The greatest contribution of Law, Legislation, and Liberty, however, is Hayek’s explanation of the fundamental difference between law and legislation. Influenced by the Italian legal scholar Bruno Leoni, Hayek argued that law is that set of rules that emerges “spontaneously,” unplanned and undesigned. Law forms out of the countless interactions of ordinary people as they go about their daily lives. Legislation, in contrast, is a set of rules and commands that government consciously designs and imposes. Hayek believed that every good society must use a combination of law and legislation, but that much mischief is caused when the two are confused.
- Donald J. Boudreaux, The Essential Hayek (2014), Introduction
- It is not merely the outside critic who has difficulties with Hayek's rule-bound Evolutionism. Hayek has difficulty himself. If there is an inbred wisdom, not apparent to the naked eye, in the evolution of common law or common custom, why deny this hidden wisdom to more interventionist or authoritarian structures? After all, institutions such as rent control, price control, a large nationalised sector, and heavy progressive taxation have existed in many countries for generations and have often evolved gradually. Might they not contain their own wisdom, not obvious to Hayek when writing as an economist? And will not, say, the abolition of rent control in Britain—let alone the reproduction of capitalism, or free elections, in the Soviet Union—set in train all sorts of events not foreseeable by the simple-minded democrat or free-market economist who looks only at immediate consequences?
- Samuel Brittan, "Hayek, the New Right, & the Crisis of Social Democracy", Encounter (January 1980)
- The biggest weakness of Hayek's proposals for a Legislative Assembly is not the method of selection but the lack of even a vague picture of how it would operate in practice in relation to the Governmental Assembly. He is explicit that the Budget must be considered by the latter body. But the majority party in that assembly would not have unlimited freedom to make any budgetary provisions it liked, or the whole point of the arrangement would go. Would it set rates within a tax structure designed by the legislators? Where would the boundary be? Would there be any limits to tax progression, or for that matter any guarantees for social security beneficiaries? Here we are merely told that the principles of public finance would have to be rethought.
- Samuel Brittan, "Hayek, the New Right, & the Crisis of Social Democracy", Encounter (January 1980)
- I think that there are two possible solutions. One is to say that Hayek’s criticisms of constructed orders and his evolutionary account of the development of ethics were on two different levels. Hayek himself was a type of rule utilitarian, and his criticisms of constructed orders had to do with the bad consequences he thought they entailed. On the other hand, his evolutionary writings were a positive account of the origins, persistence, and functions of a system of ethics and of certain specific ethical norms. This also may hold the key for explaining his model constitution proposal. Here we must distinguish between rule proposal or design, and rule selection. Anyone, including Hayek, is free to propose new designs for rules. Rule selection, though, takes place through an evolutionary process: new rules and practices are tried out, and they succeed or fail. (It must be admitted, though, that the model constitution goes considerably beyond the sort of “piece-meal” proposals for change that Hayek typically viewed as acceptable. Another solution for this particular problem is to take him at his word, that it is only a model, a kind of thought experiment.)
- Law, Legislation and Liberty was written and published during a different period from The Constitution of Liberty. The earlier work was a product of the late 1950s—a generally optimistic and socially cohesive time when Hayek himself was in his late fifties, at the University of Chicago. Law, Legislation and Liberty, on the other hand, was a product of the 1960s and 1970s, a far more turbulent time, as he became an old man, was somewhat intellectually isolated in Freiburg and Salzburg, and experienced depression. That the later work has a different feel from the former is hardly to be unexpected. The relationship between the two works might be considered to be something like that between Plato’s Republic, a product of his prime, and Plato’s Laws, a product of his old age.
- Alan Ebenstein, Hayek's Journey: The Mind of Friedrich Hayek (2003) Ch. 16. Law, Legislation and Liberty
- Hayek’s attempt to fashion a regime in which the freedoms he cherished would be invulnerable to political challenge led him to some curious proposals. In The Political Order of a Free People (1979), the third volume of his last major work, Law, Legislation and Liberty, he outlined a scheme for a bicameral legislature in which the upper chamber is composed only of people elected at the age of 45 for a 15-year term by an electorate also consisting only of 45-year-olds. When they reached 60, members of the upper house would be retired and given a lifelong sinecure.
Hayek liked to ridicule the idea that institutions could be designed on the basis of abstract models – a view he criticised as embodying a philosophy of “constructivist rationalism”. Yet his scheme for an ultra-liberal constitution was a prototypical version of the philosophy he had attacked.
- Von Hayek’s insistence that representative democracy must be restrained so that democracy can be protected from its own worst tendencies arguably placed much too much faith in the spontaneous freedoms allegedly generated by markets. It supposed rather too readily that constitutional mechanisms could be relied upon to have self-restraining effects upon the power and scope of government. There is as well the suspicion that ‘demarchy’ would in practice quickly degenerate into a species of state authoritarianism. Von Hayek was fond of proposing (see ibid., p. 113) a bicameral system of government regulated principally by an assembly charged with the task of defining and protecting the constitutional framework. The assembly members would comprise men and women aged between 45 and 60, elected as representatives for a fifteen-year term by voters who cast their ballots for a representative of their choice only once in their lives, in the calendar year in which they reached the age of 45. Quite aside from numerous technical objections to the whole proposal for an assembly that resembled a senate of the wise, Von Hayek never made clear exactly how public support could freely be won for constitutional rule by an elite based on such a restricted franchise. These and other criticisms of his attack on democracy have been well developed by others elsewhere. Here, the fundamental objection to von Hayek’s reasoning is quite different, and more elementary. It is an empirical objection: that von Hayek failed to spot the growth of monitory democracy, with its scores of new non-market and extra-constitutional mechanisms designed to monitor and make publicly accountable exercises of power, not only in the field of domestic and cross-border government but also in the local, regional and global fields of markets and other civil society institutions.
- John Keane, The Life and Death of Democracy (2009)
- Hayek's political philosophy either invokes a number of different, and incompatible, moral theories to defend different claims, or lacks any normative moral theory at all. [...] Hayek presents three kinds of argument to defend his liberal social order and the conception of justice he sees at its heart. The first is a contractarian argument which invokes Kantian considerations to deny that patterning principles of social justice can be morally justified. The second is a conservative argument which not only points to the value of established traditions but also repudiates the claim that reason can present complete justifications for the rules governing any social order. The liberal order is preferred as that order which makes the fewest demands upon individual reason, for its principles of justice aim primarily at maintaining the abstract order of rules rather than at the rational reconstruction of society according to principles of distributive justice. The third is a utilitarian argument drawing attention to the beneficial consequences of a stable regime of liberal justice: progress and material prosperity. While each of these arguments appears in Hayek's work, none, as we have seen, can clearly be held to be fundamental.
- Chandran Kukathas, Hayek and Modern Liberalism (1989), p. 201
- Hayek himself, then, was a partisan of the milder version of Hayekianism. This version is not so much a prescription as an attitude. Respect tradition. Reject utopianism. Plan for mistakes rather than for perfection. If reform is needed, look for paths that follow the terrain of custom, if possible. If someone promises to remake society on rational or supernatural or theological principles, run in the opposite direction. In sum: Move ahead, but be careful.
Good advice. But not advice, particularly, against gay marriage. Remember Hayek's admonition against dogmatic conservatism. In a shifting current, holding your course can be just as dangerous as oversteering. Conservatives, in their panic to stop same-sex marriage, jeopardize marriage's universality and ultimately its legitimacy. They are taking risks, and big ones, and unnecessary ones. The liberal tradition and the Declaration of Independence are not currents you want to set marriage against.
- Jonathan Rauch, "Objections to These Unions" (June 2004)
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