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
on that community’s moral traditions; but the ideal itself is not
reducible to the opinions of a particular community.
Hayek is dealing here with the problem of transcendence,
and he had several alternative ways to address it. First, he might
have presented the Rule of Law as a ‘higher law’ or natural law,
something timeless that we discover by reasoning on the nature of
things. Hayek’s Rule of Law can be seen as an up-to-date version
of the higher law doctrine, but he rejects natural law. The idea of
a constant nature with moral meaning is ruled out by his absorption
of reason into civilisation or his understanding of being
as process. The Rule of Law does function like the older law of
nature, standing above and limiting government; but unlike
natural law, it is neutral as regards the ends of human action.
A second alternative was made available by post-Hegelian
German historicism. Historicism ‘was a school that claimed to
recognize necessary laws of historical development and to be able
to derive from such insight knowledge of what institutions were
appropriate to the existing situation.’ It assumed that the mind,
by transcending limitations of time and place, can ‘explicitly
recognize how our present views are determined by circumstances
and use this knowledge to remake our institutions in a manner
appropriate to our time.’ Hayek objects to historicism on two
grounds: it leads to an ‘extreme relativism,’ inasmuch as it posits a
separate ideal for each epoch and not a universal ideal for civilisation;
and it is ‘constructivist,’ since it rejects ‘all rules that cannot
be rationally justified or have not been deliberately designed to
achieve a specific purpose’ (235–6).
A third alternative was laid out by Max Weber. Weber
rejected the historicist claim that there are discoverable laws of
history, holding instead that the social scientist is confronted with
boundless facts of experience, from which he must select those
that will give focus to his research. This selection is achieved by
constructing ‘ideal types,’ which are very different from ideals of a
moral or aesthetic character. Ideal types, such as ‘capitalism,’ are
indispensable to social science. While they are designed to study
people’s values, they rigorously avoid any value judgements of
their own or any claim as to what ought to be. Moral and aesthetic
ideals have no place in social science, since they have no rational
or empirical basis whatever. A scholar may decide to become the
advocate for an ideal, but in doing so he leaves science behind and
enters the ceaseless conflict that ‘rages between different gods.’
Weber’s ‘war of the gods’ is his characterisation of the conflict
between ideals. The choice among them is ultimately a matter of
faith or the individual’s subjective decision (Weber, 2004: 17–31;
Weber, 1949: 17–19, 22–6, 50–59, 89–101).
Hayek greatly admired Weber, especially for denying that
history exhibits discoverable laws and for advocating methodological
individualism in social inquiry. He could not, however, accept
Weber’s conclusion, with its deep Nietzschean overtones, that
ideals lack a foundation, that there is no rational basis for judging
one to be superior to another, and that the decision among them
is ultimately an arbitrary one, based on an act of faith or sheer
will – like choosing between God and the Devil. To be sure, the
political philosopher, by Hayek’s reckoning, must not be ‘afraid
of deciding between conflicting values.’ He recognises ‘that he
must choose which he should accept and which reject’ (114–15).
Nevertheless, Hayek looks for some foundation for this choice and
refuses to see it as only a matter of faith or subjective will.
Hayek’s alternative is to put forward his ideal, the Rule of
Law, as a meta-legal principle. He does not tell us much about the
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