Hayek's The Constitution of Liberty - Institute of Economic Affairs

h ay e k ’ s t h e c o n s t i t u t i o n o f l i b e r t y
t h e r u l e o f l aw a n d i t s d e t r a c t o r s
of Liberty; and taking them into account will be helpful in understanding
his later exposition.
Importance of the ideal
Deciding what Hayek means by the Rule of Law is a more complex
problem than might first appear. ‘Rule’ here is not to be understood
as an activity. Hayek does not mean that the law rules, in
the sense of exerting authority over a political community. He is
thinking instead of ‘rule’ as a precept or, more accurately, as an
ideal. The Rule of Law depicts what the law should be in a free
society. It is a definitive principle or ideal – the ideal of freedom
under the law – that stands above and measures the laws of a
community. Existing laws, including constitutional provisions
as well as ordinary legislation, may approach this ideal, but can
never embody it perfectly.
Hayek says this about the importance of having an ideal of
liberty:
Not only is liberty a system under which all government
action is guided by principles, but it is an ideal that will
not be preserved unless it is itself accepted as an overriding
principle governing all particular acts of legislation. Where
no such fundamental rule is stubbornly adhered to as an
ultimate ideal about which there must be no compromise
for the sake of material advantages – as an ideal which, even
though it may have to be temporarily infringed during a
passing emergency, must form the basis of all permanent
arrangements – freedom is almost certain to be destroyed
by piecemeal encroachments. (68)
The ideal of the Rule of Law is designed to preserve a system
of liberty. What remains uncertain, however, is how an ideal as
such, as distinct from some particular ideal, is to be understood.
What is its cognitive status? Is it grounded in what we can know
or experience of reality?
A meta-legal principle
In the Cairo Lectures, Hayek describes the Rule of Law as ‘an
extra-legal rule’ or ‘a Meta-Legal principle’ (1955: 26, 32–3). Hayek
opens Chapter 14 of The Constitution of Liberty with a section
entitled ‘The rule of law [as] a meta-legal doctrine,’ and here he
quotes the third lecture almost verbatim:
The rule of law is … not a rule of the law, but a rule
concerning what the law ought to be, a meta-legal doctrine
or a political ideal. It will be effective only so far as the
legislator feels bound by it. In a democracy this means
that it will not prevail unless it forms part of the moral
tradition of the community, a common ideal shared and
unquestioningly accepted by the majority. (206)
Hayek intends to draw a sharp line between laws and the Rule
of Law: ‘From the fact that the rule of law is a limitation upon
all legislation, it follows that it cannot itself be a law in the same
sense as the laws passed by the legislator’ (205). Systems of laws
or rules are products of the evolutionary process, where man
interacts constantly with his environment. The Rule of Law as an
ideal or meta-legal principle, while derivative from this process,
somehow stands above it as a constant or universal. It provides a
standard to which the laws should conform, if they are to remain
within bounds. The ideal’s political effectiveness will depend on
whether a community believes in it, and this depends in turn
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